Petition For Interim Suspension Response

IN THE SUPREME COURT OF FLORIDA Case No.: SC05-1149 L.T. Case No.: 2004-10,132(6A)

THE FLORIDA BAR, Complainant v.

MARK A. ADAMS, 1

Respondent.

RESPONSE TO THE FLORIDA BAR'S PETITION FOR INTERTM SUSPENSION COMES NOW, the Respondent, MARK A. ADAMS, pursuant to this Court's Order dated March 9,2006, and files his Response to the Florida Bar's Petition for Interim Suspension showing that the Florida Bar's Petition for Interim Suspension should be denied because there is no legal basis for an interim suspension, because the Florida Bar's Petition does not even meet the miniinurn requirements for a petition for an emergency suspension, and because an interim suspension would violate the procedures established for due process in disciplinary proceedings before this Court.

INTERIM SUSPENSION The Florida Bar's Petition does not cite any rule or case as a legal basis for an interim suspension, but it does acknowledge that Rule 3-5.2 governs proceedings for emergency suspension. This failure is not surprising as the Rules

Regulating the Florida Bar do not provide for an interim suspension. Please see and take judicial notice of the results of the Westlaw search for the tenns "Rules Regulating the Florida Bar"and '"nterim suspension" in Appendix A. Furthermore, only two cases discuss the interim suspension of an attorney, The Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005) and The Florida Bar v. Prior, 330 So.2d 697 (Fla. 1976). Please see and take judicial notice of the results of the Westlaw search for the terms "interim suspension" and "attorney" in Appendix B. Prior concerns the automatic suspension of an attorney convicted of multiple felonies. On November 6, 1974, the Florida Bar filed a petition to suspend Mr. Prior for conviction of multiple felonies, and Mr. Prior filed a timely response to the Bar's petition. Prior at 697-698. As a result, this Court followed the rule which applied at that time to attorneys who were convicted of a crime, and it deferred the suspension until the parties could present their briefs to this Court. Id. After complying with the procedure for due process provided in the

appropriate rule and considering the parties' briefs, this Court decided to suspend

Mr. Prior on March 3 1, 1976. Id. Prior is clearly distinguishable frsm the instant case as the Respondent herein has not been charged with or convicted of any felony.

0 1 1 August

8, 2002, the Florida Bar filed a petition for an order to show

cause why Ms. Forrester should not be held in contempt and to suspend Ms. Forrester who it alleged had been practicing law while suspended. Forrester at

649. The Florida Bar's petition in Forrester is not available online, but a review of the respondent's briefs indicate that an affidavit was attached to the Florida Bar's petition as required by Rule 3-5.2 which governs proceedings for emergency suspension. Furthermore, it appears that the Florida Bar inadvertently used the term interim rather than emergency in its petition for Ms. Forrester's suspension as the term is only found in this Court's opinion in Forrester in connection with the title of the Bar's petition, and therefore, Forrester does not provide any legal basis for an interim suspension or for the Florida Bar's Petition for Interim Suspension of the Respondent. EMERGENCY SUSPENSION Rule 3-5.2 governs proceedings for emergency suspension and probation. Rule 3-5.2(a) states, "On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that an attorney appears to be causing great public harm, the Supreme Court of Florida may issue an order imposing emergency conditions of probation on said attorney or suspending said attorney on

an emergency basis." Rule 3-5.2(a) requires a proper authorization and at least one affidavit to invoke this Court's jurisdiction to issue an emergency suspension order. In addition, Rule 3-5.2(d) requires the filing of a formal complaint within 60 days of an emergency order, and Rule 3-5.2 does not contain any provision for an emergency suspension of an attorney based upon a referee's report. Furthermore, the Florida Bar's Petition in this case also fails to comply with Rule 3-5.2(a) because it is only authorized by Jodi A. Thompson, an assistant staff counsel, and it is not supported by any affidavit.' Therefore, the Florida Bar's Petition is not even sufficient to invoke this Court's jurisdiction to issue an emergency suspension order.

GOVERNING LAW Rule 3-7.7 states, "All reports of a referee and all judgments entered in proceedings under these rules shall be subject to review by the Supreme Court of Florida in the following manner:" Rule 3-7.7 does not provide for any interim or emergency suspension of attorneys. The pertinent part of Rule 3-7.7(c)(6) states, "After review, the Supreme Court of Florida shall enter an appropriate order or judgment."

' In addition, the Florida Bar's Petition does not meet the requirements of Florida Rule of Appellate Procedure 9.21O(a)(2) because it is not double-spaced and does not contain a certificate of compliance.

Rule 3-7.7 provides the procedure for review of the referee's report in the instant case, and the Respondent intends to file a timely petition for review pursuant to Rule 3-7.7(c)(l). In the proceedings pursuant to Rule 3-7.7, the Respondent intends to show that the referee's decision is erroneous, unlawful, and unjustified, that the proceedings before the referee did not meet the minimum requirements of due process, and that the Grievance Committee's finding of probable cause which provides the jurisdictional basis for this disciplinary proceeding was tainted by a prohibited conflict of interest on the part of the Grievance Committee's Chair. Due to these fundamental errors, this Court is likely to reverse the referee's decision if it does not decide to dismiss this action altogether. As there is no legal basis for the relief requested in the Florida Bar's Petition for Interim Suspension, one must wonder why the Florida Bar is requesting that this Court ignore the rules and procedures that it has established for due process in disciplinary proceedings. It appears that the Florida Bar may have filed its Petition to place an additional undue burden on the Respondent and thereby negatively impact his preparations of his petition for review of the referee's report and his brief in support of the same. Certainly, the relief requested in the Florida Bar's Petition would have a negative impact on the Respondent, his clients, and his ability to appeal the referee's report.

CONCLUSION The Rules Regulating the Florida Bar do not provide for at1 interim suspension and neither does case law. Rule 3-5.2 does not provide any legal basis for an emergency suspension of an attorney based upon a referee's report, and the Florida Bar's Petition in this case also fails to comply with Rule 3-5.2(a) because it is only authorized by Jodi A. Thompson, an assistant staff counsel, and it is not supported by any affidavit. Therefore, the Florida Bar's Petition is not even sufficient to invoke this Court's jurisdiction to issue an emergency suspension order. Rule 3-7.7 provides the procedure for review of the referee's report in the instant case, and the Respondent intends to file a timely petition for review pursuant to Rule 3-7.7(c)(l). As this Court did in Prior,it should allow the Respondent due process under the appropriate rule. This Court should follow the procedure it has established for due process under Rule 3-7.7 for reviewing the referee's report which does not provide for any interim or emergency suspension of attorneys. WHEREFORE,The Respondent respectfully requests that this Court enter an order denying the Florida Bar's Petition for Interim Suspension and prohibit the Florida Bar from undertaking M h e r efforts to interfere with the Respondent's

preparation of his petition for review of the referee's report and his brief in support of the same. Respectfully Submitted,

Mark A. Adams, Esquire

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been served by U.S. Mail to trial counsel for the Florida Bar, Louis Kwall, Esquire at 133 North Fort Harrison Avenue; Clearwater, Florida 33755 and to Staff Counsel for the Florida Bar at 65 1 1

E. Jefferson Street; Tallahassee, Florida 32399 on this i

1

'> day of March,

Mark A. Adams, Esquire Fla. Bar No. 0 193178 P.O. Box 1078 Valrico, FL 33595 Telephone: 8 13-654- 1235 Facsimile: 8 13-654- 1390

CERTIFICATE OF COMPLfiNCIE I HEREBY CERTIFY that this response complies with the requirements of Florida Rule of Appellate Procedure 9.210(a)(2).

I\ilark A. Adams, Esquire Fla. Bar No. 0 193178

IN THE SUPREME COURT OF FLORIDA Case No.: SC05-1149 L.T. Case No.: 2004- 10,132(6A)

TFE FLORIDA BAR, Complainant

MARK A. ADAMS, Respondent.

1

RESPONSE TO THE FLORIDA BAR'S PETITION FOR INTERIM SUSPENSION APPENDIX TABLE OF CONTENTS Document

Results of Westlaw search for the terms "Rules Regulating the Florida Bar" and "interim suspension" Results of Westlaw search for the terms "interim suspension" and "attorney"

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Search- FL-ST-ANN - "RULES REGULATI

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Edit Search: "rules regulating the florida bar" &"interim suspension"

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Florida Jurisprude~ce 1. Attorneys at Law, Types of Dlsc~pllne,Suspension, Generally

Florida J_uyispruden~e 2. Attorneys at Law, Suspended Members, Required Showing of Fitness to Resume Practice of Law, Professional Ability

Florida Juwisprudence 3. Attorneys at Law, Disciplinary Proceedings, ~videnceand Witnesses, in General, Discipline by Another Jurisdiction

4. Attorneys at Law, Disciplinary Proceedings, Effect of Disbarment or Suspension, On Practice in Other States; Reciprocal Discipline

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Am.Jur.2d 5. Attorneys at Law, Nonprofessional Misconduct, Conviction or Commission of Crime, Other Crimes and Offenses

U.S.S_?lpreme_CpurtBrief 6. Ronald C. EUBANKS d/b/a Lawyer Complaint Service Re: Amended Petition to Amend Rules Regulating the Florida Bar. Appellate Petition, Motion and Filing as stated in Rule 1-8.2 Unlicensed Practice of Law, of the Rules Regulating The Florida Bar, even though the state has Fla. Stat. 454.23 t o protect t h e public. 1995 Supreme Court of the United States. Clickfor Free-Summary

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U.S. Sxrerne W u r t Brief 7. William A. CALVO, 111, Petitioner, v. THE FLORIDA BAR, Respondent. Appellate Petition, Motion and Filing The Florida Bar filed a motion t o limit issues a t trial t o that of discipline, claiming *14 t h a t a violation of Commission Rule 2e was a n automatic violation o f undefined Florida disciplinary rules. 1994

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QUERY - "INTERIM SUSPENSION" & ATTORNEY

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DATABASE@) - FL-CS

The Florida Bar v. Forrester, 916 So.2d 647,30 Fla. L. Weekly S623 (Fla., Sep 08,2005)(NO. SCO1-1819, SCO2-1752)

...Geneva Carol Fnrrester, Respondent. Nos. SC01-1819, SC02-1752. Sept. 8,2005. Rehearing Dcnied Nov. 22,2005. Background: In two attorney discipline cases, Florida Bar alleged attorney violated Rules of Professional Conduct and recommended suspension from practice of law. I-foldings: Upon ...

...of Professional Conduct and recommended suspension from practice of law. Holdings: Upon consolidating cases, the Supreme Court held that: (1) attorney's knowingly false and disparaging and humiliating statements in pleading submitted to court violated Rules of Professional Conduct; (2) as matter ... ...to court violated Rules of Professional Conduct; (2) as matter of flust impression, standard of proof in contempt proceedings against attorney based on alleged violation of disciplinary order was clear and convincing evidence, not proof beyond reasonable doubt; (3) attorney knowingly ... 2.

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The Florida Bar v. Prior, 330 So.2d 697 (Fla., Mar 31, 1976)(NO. 46442) ..West Headnotes 45 Attorney and Client 451 The Office of Attorney 45I(C) Discipline ...

... or judgment of guilt is entered by any court other than a court of the State of Florida, the convicted attorney shall stand suspended as a member of The Florida Bar on the 1llh day following the filing with the Clerk ...

... certified copy of such determination or judgment, accompanied by proof of service of notice of such tiling upon the convicted attorney; provided, however, that if the convicted attorney shall prior to the I lth day file a petition with the Supreme Court ...

O 2006 ThomsoniWest. No Claim to Orig. U.S. Govt. Works