IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR ...€¦ · recommendation was partially due to Grigsby's two prior disciplinary cases. ... 4200 George J. Bean Parkway, Suite 2580,

i,

IN THE SUPREME COURT OF FLORIDA (Before a Referee)

THE FLORIDA BAR,

Complainant, Case No. SC12-684

I

v. TFB Case No. 2011-11,038 (6D)

MICHAEL J. GROSS,

Respondent. /

------------------------~

REPORT OF THE REFEREE

I. SUMMARY OF PROCEEDINGS

Pursuant to the undersigned being duly appointed a referee to conduct, disciplinary proceedings according to Rule 3-7.6, Rules Regulating The Florida Bar, the following proceedings occurred:

The Florida Bar filed a one-count complaint with The Supreme Court of Florida on April 12, 2012. Respondent failed to file an Answer to the complaint. As a result, the Bar filed a Motion for Default on May 14,2012. A hearing was set for May 14,2012, Respondent was ordered to appear, and a Notice of Hearing was sent to Respondent. On May 14,2012, Respondent failed to appear and the Referee granted the Bar's Motion for Default. The default the Referee entered against Respondent constituted a formal stipulation by Respondent as to the correctness of the factual allegations contained in the Bar's complaint. See Florida Bar v. Shoureas, 892 So.2d 1002,1005 (Fla. 2004). This Referee ordered that if any party desired a sanction hearing, it must be requested in writing no later than June 11, 2012. Respondent failed to request a Sanctions Hearing as required by the Order. A Memorandum of Law for Sanctions was submitted by the Bar. All of the pleadings, responses thereto, exhibits, the Bar's Memorandum of Law for Sanctions, and this Report of Referee, will constitute the record in this case to be forwarded to the Supreme Court of Florida.

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II. FINDINGS OF FACT:

A. Jurisdictional Statement. Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida.

B. Narrative Summary of Case.

In December 2009, Respondent was retained by Mr. Joshua Tilka for legal representation in a family law matter. Mr. Tilka paid $350.00 to Respondent at the beginning of the representation and then an additional $600.00 in February 2010. A few months after accepting representation, Respondent told Mr. Tilka that he was retiring and handing over his cases to attorney Jennifer Isaksen, for no additional fees. In May 2010, Respondent informed Ms. Isaksen that he needed a break from practicing law and he persuaded her to take over the representation of his family law cases. Respondent failed to retire from the Florida Bar and disappeared. However, on June 18, 2010, Respondent was placed on the inactive list with the Florida Bar pursuant to his election to be placed on the list in lieu of retiring.

In June 2010 and May 2011,the Bar assigned an investigator to locate Respondent. The result of the investigation determined that, Respondent might have relocated to Costa Rica or a Scandinavian country, however, the investigator was unable to confirm this information. On March 21,2011, Mr. Tilka filed anInquiry/Complaint against Respondent with The Bar, alleging that Ms. Isaksen had no record of Mr. Tilka's second payment in the amount of$600.00, and that he had to pay her additional funds to represent him.

On April 8, 2011, Bar Counsel sent Respondent a letter by regular U.S. mail to his official Bar address advising him of Mr. Tilka's Inquiry/Complaint, requesting his response within fifteen (15) days, and advising Respondent that a response was required pursuant to Rule 4-8.4(g). The Bar's April 8, 2011 letter, which was sent by regular U.S. mail, was returned to the Bar as non-deliverable. Additionally, the Bar has sent several other correspondences to Respondent's official Bar Address that was returned as non-deliverable. Currently, Respondent's location is unknown, and he has failed or refused to update his official Bar address on file with The Florida Bar as required by rule.

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III. RECOMMENDATIONS AS TO GIDLT

I recommend that Respondent be found guilty of violating:

Rule 4-8.4(g) (A lawyer shall not fail to respond, in writing).

IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS

I considered the following Standards prior to recommending discipline:

Standard 7.0 Violations of Other Duties Owed as a Professional Absent aggravating or mitigating circumstances, and upon application of the

factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving false or misleading communication about the lawyer or the lawyer's services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, unreasonable or improper fees, unlicensed practice of law, improper withdrawal from representation, or failure to report professional misconduct.

7.4 Admonishment is appropriate when a lawyer is negligent in determining whether the lawyer's conduct violates a duty owed as a professional, and causes little or no actual or potential injury to a client, the public, or the legal system.

V. CASELAW

I considered the following case law prior to recommending discipline:

Florida Bar v. Grigsby, 641 So.2d 1341 (Fla. 1994): the Court found in part that, a public reprimand was an appropriate sanction for an attorney who violated Rule 4-8.4. Grigsby was appointed to represent an indigent inmate who subsequently filed a grievance with the Bar alleging that Grigsby failed to communicate with him concerning the case. Twice the Bar asked Grigsby for a response and a copy of a letter he wrote the inmate. Grigsby never replied with the request and the case was eventually referred to a grievance committee.

The referee found that Grigsby suffered from clinical depression, which explained his conduct, but did not excuse it. The ref~ree determined that an appropriate sanction for his conduct was a public reprimand. The referee's

3

recommendation was partially due to Grigsby's two prior disciplinary cases.

Florida Bar v. Greenspan, 708 So.2d 926 (Fla. 1998): the Court found in part that, a public reprimand was an appropriate sanction for an attorney who failed to cooperate with the disciplinary process. The Bar alleged in a three-count complaint that Greenspan failed to comply with certain advertising rules and that he failed to resporid to the Bar inquiry in violation of Rule 4-8.4(g). The Bar filed a formal complaint, to which Greenspan failed to respond as required by Rule 3-7.6(g)(2), resulting in the entry of a default judgment. Based on the default, the referee recommended that Greenspan be found guilty of the ethical violations charged by the Bar and that he be suspended from the practice of law for twenty (20) days, to be followed by a one-year term of probation. On review the Court approved the guilty finding but not the sanction. The Court found in part that, "A public reprimand is called for here in light of Greenspan's eighteen-year unblemished record as well as the fact that Greenspan's original transgression was rather minor."

Similar to Grigsby and Greenspan, Respondent failed to respond to the Bar .in violation of Rule 4-8.4(g). Additionally, like Mr. Greenspan, Respondents' •. failure to answer the Bar complaint resulted in a default judgment. However, Respondent was not charged with violating any other Bar rules, unlike Mr. Grigsby

.\and Mr. Greenspan. Finally, despite not retiring in an official manner Respondent . did inform his clients that he was going to cease practicing law for an unspecified time and made arrangements for them with new representation. Also, there is no indication that Respondent is aware of this matter as all mail has been returned. Accordingly, a written admonishment would be .an appropriate resolution to this case.

VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED

I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that he be disciplined by:

A. A written Admonis~ent with the Report of Referee serving as the admonishment.

B. Payment of The Florida Bar's costs in these proceedings.

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VII. PERSONAL mSTORY, PAST DISCIPLINARY RECORD

Prior to recommending discipline pursuant to Rule 3-7 .6(m)(1), I considered the following:

A. Personal History of Respondent: Age: 58 Date admitted to the Bar: May 11, 1989

B. Aggravating Factors: None.

C.Mitigating Factors: Standard 9.32(a) absence of prior disciplinary record.

The . Referee notes that the Respondent is not certified in any area of practice.

VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED

The Florida Bar's Motion to Assess Costs is granted. I find the following costs were reasonably incurred by The Florida Bar:

Investigative Expenses Investigator Costs LexisNexis Court Reporters' Fees Bar Counsel Expenses Administrative Fee

TOTAL

$16.50 $381.20

$20.10 $85.00 $11.27

$1,250.00

$1.764.07 .

It is recommended that all such costs and expenses be charged to the respondent and that interest at the statutory rate shall accrue and be payable beginning 30 days after the judgment in this case become final unless a waiver is granted by the Board of Governors of The Florida Bar.

5

cl '

. / ¢- ()Jdd. Dated this lB day of J4;:f612.

Referee Original to:

The Honorable Thomas D. Hall, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32301

Copies to:

Leonard Evans Clark, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496;

Michaell Gross, Respondent at his record Bar address of 31 54th Street North, Saint Petersburg, FL 33710-8017; and

Kenneth L. Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300.

6


THE FLORIDA BAR,


v. TFB Case No. 2011-11,038 (6D)

lVIICHAEL J. GROSS,

Respondent.

----------------------~/ MOTION TO ASSESS COSTS

The Florida Bar, pursuant to Rule 3-7.6(q), requests costs in the amount of

$1,764.07 be assessed against Respondent. In support of this :MOtion, alleges the

following:

1. Attached hereto as "Exhibit A" is a Statement of Costs as

required by Rule 3-7.6(q)(5). This Statement of Costs identifies costs

incurred by The Florida Bar in the prosecution of this case and for which

reimbursement from Respondent is requested.

2. Respondent shall have ten (10) days in which to obj~t to the

costs identified in this motion. failure to timely object, shall be considered a

waiver of any objection pursuant to Rule 3-7.6(q)(5) (as amended, effective

February 1, 2010).

3. In the event Respondent objects to any costs, The Florida Bar

requests a telephonic hearing regarding any such objection.

4. It is the policy of the Supreme Court to award costs whenever

the Bar is successful in whole or in part. In The Florida Bar v. Head, 27 So.

3d 1 (Fla. 2010), the Court stated:

"where the choice is between imposing costs on a Bar member who has misbehaved and imposing them on the rest of the members who have not misbehaved, it is only fair to tax the costs against the misbehaving member. Citing The Florida Bar v. Kassier, 730 So. 2d 1273 (Fla 1998).

5. Costs are to be awarded to the Bar even in the event of

Diversion. See, The Florida Bar v. Carson, 737 So. 2d 1069 (Fla 1999).

Costs are to be awarded regardless of Respondent's ability to pay. See The

Florida Bar v. Lechtner, 666 So. 2d 892 (Fla. '1996).

WHEREFORE, The Florida Bar requests costs in the amount of $1,764.07 be

assessed against Respondent and that interest at the statutory rate shall accrue and . .

be payable beginning 30 days after the judgment in this case becomes final unless a

waiver is granted by the Board of Governors of The Florida Bar.

Respectfully submitted,

Leonard Evans Clark Bar Counsel The Florida Bar 4200 George 1. Bean Pkwy. Suite 2580 Tampa, Florida 33607 (813) 875-9821 Florida Bar No.657808

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing Statement to Assess Costs was furnished by U.S. Regular Mail to The Honorable Claudia Rickert Isom, Referee, at 13th Judicial Circuit Probate Division A, 800 East Twiggs Street, Suite 430, Tampa, FL 33602-3541; a copy has been furnished by First Class Mail, to R.espondent, Michael J. Gross, whose record bar address is 31 54th Street North, Saint Petersburg, FL 33710-8017 and a copy has been furnished to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this d--Y T" day of June, 2012.

~Q~~ Leonard Evans Clark Bar Counsel


THE FLORIDA BAR,


v. TFB No. 2011-11,038 (6D)

MICHAEL J. GROSS,

Respondent.

--------------------~/ STATEMENT OF COSTS

COMES NOW The Florida Bar and files this Statement of Costs pursuant to

Rule 3-7.6(q) of The Rules Regulating The Florida Bar:

Administrative costs pursu~t to Rule 3-7.6(q)(1)(I)

Investigative Costs: 5-06-11 $95.00 5-12~11 $67.50 6-22-10 $78.30 6-24-10 $62.10 6-28-10 ' $78.30

Sub-total:

Investigative Expense: 6-22-10

Bar Counsel Costs: 5-14-12

Court Reporting: 5-14-12

'EXHIBITA "

~~ --~l

']

$1,250.00

$381.20

$ 16.50

$ 11.27

$ 85.00

'" ., ,~, l

Miscellaneous: LexisNexis

Sub-total:

4-30-12 6-30-11

TOTAL'

$ 17.40 $ 2.70


eonard Evans Clark Bar Counsel The Florida Bar Tampa Branch Office

$ 20.10

$1,764,07

4200 George J. Bean Parkway, Suite 2580 Tampa, Florida 33607-1496 (813) 875-9821 Florida Bar No-.: 657808


I HEREBY CERTIFY that the original of the foregoing Statement of Costs has been furnished, by First Class mail to The Honorable Claudia Rickert 180m, Referee, 13th Judicial Circuit Probate Division A, 800 East Twiggs Street, Suite 430, Tampa, FL 33602-3541; a copy has been furnished by First Class mail to Mr. Michael J. Gross, Respondent, whose record bar address is 31 54th Street North, Saint Petersburg, FL 33710-8017; and a copy has been furnished by First Class mail to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651- East Jefferson Street, Tallahassee, Florida, 32399-2300, this d.CP 7S,day of June, 2012.

Leonard Evans Clark Bar Counsel

2

r-" ---:" \1 .,

)-~ ~k J& 04t-1~ () ~IJ

IN THE SUPREME COURT OF FLORIDA ct~ ~ ./ 0 oly1l(

(Before a Referee) l:Jy ~J'~ <'tJ.

THE FLORIDA BAR,

Complainant, ~

~~~o ~ 'b/~,.

~./fr

Case No. SC12-684

v. TFB No. 2011-11,038 (6D)

MICHAEL J. GROSS,

Respondent.

----------------------------------------~/ STATEMENT OF COSTS

COMES NOW The Florida Bar and files this Statement of Costs pursuant to

Rule 3-7.6(q) of The Rules Regulating The Florida Bar:

Administrative costs pursuant to Rule 3-7.6(q)(1)(I) $1,250.00

Investigative Costs: 5-06-11 $95.00 5-12-11 . $67.50 6-22-10 $78.30 6-24-10 $62.10 6-28-10 $78.30

Sub-total: $381.20

Investigative Expense: 6-22-10 $ 16.50

Bar Counsel Costs: 5-14-12 $ 11.27

Court Reporting: 5-14-12 $ 85.00

.- .... r

Miscellaneous: LexisNexis

Sub-total:

4-30-12 6-30-11

TOTAL'

$ 17.40 $ 2.70


eonard Evans Clark Bar Counsel The Florida Bar Tampa Branch Office'

$ 20.10

$1.764.07

4200 George J. Bean Parkway, Suite 2580 Tampa, Florida 33607-1496 (813) 875-9821 Florida Bar No.: 657808


I HEREBY CERTIFY that the original of the foregoing Statement of Costs has been furnished by First Class mail to The Honorable Claudia Rickert Isom, Referee, 13th Judicial Circuit Probate Division A, 800 East Twiggs Street, Suite 430, Tampa, FL 33602-3541; a copy has been furnished by First Class mail to Mr. Michael J. Gross, Respondent, whose record bar address is 31 54th Street North, Saint Petersburg, FL 33710-8017; and ,a copy has been furnished by First Class mail to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida, 32399-2300, this;).cp 7~day of June, 2012.


2

THE FLORIDA BAR,

Complainant, Case No.

v. TFB No. 2011-11,038 (6D) ""

MICHAEL J. GROSS,

Respondent.

----------------------~/

INDEX OF RECORD

Tab Pleading Date filed/issued

1 COMPLAINT 04112112

2 NOTICE to Appoint Referee 04117/12

3 ORDER Appointing Referee 04/23/12

4 NOTICE OF Hearing, CMC, Motion for Default 05/01112

5 THE FLORIDA BAR'S MOTION for Default 05/14/12

6 ORDER on The Florida Bar's Motion for Default 05/14112

7 THE FLORIDA BAR'S Memorandum of Law for Sanctions 06/26112

8 MOTION TO ASSESS Costs with Statement of Costs 06/26112

9 REPORT OF Referee 07/06112

10 CERTIFICATION OF Record & Index 07/06112

11 CORRESPONDENCE

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant, SC Case No. SC12-684

v. TFB File No. 2011-11,038 (6D)

MICHAEL J. GROSS,

Respondent.

----------------------------~/

CERTIFICATION OF RECORD & INDEX

I HEREBY CERTIFY the above record and index are complete pursuant to R. Regulating

Fla. Bar 3-7 .6(n)(3).

Dated this Ie daYOr&

onorable Claudia . ckert Isom, Referee 13th Judicial Circuit Probate Division A 800 East Twiggs Street, Suite 430 Tampa, FL 33602-3541

Thomas D. Hall, Clerk, Supreme Court of Florida, with Referee's original file.

Copies of this Certification of Index only to:'

Leonard Evans Clark, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496;

Michael}. Gross, Respondent, 31 54th Street North, st. Petersburg, FL 33710-8017; and

Kenneth L. Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300.

CLAUDIA RICKERT ISOM Phone (813) 272·5211

Fax (813) 301·3765

CHAMBERS OF

CmCUIT JUDGE TmRTEENTH JUDICIAL CIRCUIT

TAMPA, FLORIDA 33602

July 6,2012

The Honorable Thomas D. Hall, Clerk The Supreme Court of Florida 500 South Duval Street Tallahassee, FL 32399-1925

Re: Complaint of J~~If~t v. Michael J. Gross Supreme Court Case No. SC12-684 The Florida Bar File No. 2011-11,038 (6D)

Dear Mr. Hall:

HILLSBOROUGH CbuNTY GEORGE EDGECOMB COURTHOUSE

800 E. Twiggs Street, Rm 430 Tampa, Florida 33602

Enclosed please find the Index of Record and contents for the above-referenced -::ase.

; . ~

Judge Claudia R. Isom

-._-_ ... _---_. __ ._---_._-- - ;,

•• L

THE FLORIDA BAR,

Complainant,

v.

MICHAEL J. GROSS,

Respondent.

----------------------~/

COMPLAINT

THE FLORIDA BAR, Complainant, files this Complaint against Michael

J. Gross, Respondent, pursuant to Rule 3-3.2(b), Rules Regulating The Florida Bar,

and alleges:

1. Respondent is, and at all times pertinent to this Complaint has been, a

member of The Florida Bar, subject to the jurisdiction of the Supreme Court of

Florida.

2. In or about December 2009, Respondent was retained by Mr. Joshua

Tilka for legal representation in a family law matter.

3. Upon information and belief, Respondent was paid $350.00 at the

beginning of the representation in December 2009, and then an additional $600.00

in February 2010.

4. Mr. Tilka believed that the $950.00 in legal fees secured Respondent's

representation in his case through the final determination of child support.

5. A few months after accepting representation, Respondent told Mr.

Tilka that he was retiring and handing over his cases to attorney Jennifer Isaksen,

for no additional fees.

6. In May 2010, Respondent informed Ms. Isaksen that he needed a

break from practicing law and he persuaded her to take over the representation of

his family law cases. Respondent failed to retire from the Florida Bar and

disappeared.

7. On June 18, 2010, Respondent was placed on the inactive list with the

Florida Bar.

8. The Florida Bar assigned an investigator to locate Respondent in June

2010 and May 2011. The investigator was informed that Respondent might have

relocated to Costa Rica or a Scandinavian country, however, the investigator was

unable to confirm this information.

9. On or about March 21,2011, Mr. Tilka filed an Inquiry/Complaint

against Respondent with The Florida Bar, alleging that Ms. Isaksen had no record

of Mr. Tilka's second payment in the amount of $600.00, and that he had to pay

her additional funds to represent him.

10. On or about April 8, 2011, Bar Counsel sent Respondent a letter by

2

regular U.S. mail to his official Bar address advising Wm of Mr. Tilka's

Inquiry/Complaint, requesting his response within fifteen (15) days, and advising

Respondent that a response was required pursuant to Rule 4-8.4(g). A copy of Bar

Counsel's April 8, 2011 letter to Respondent is attached hereto as Exhibit A.

11. The Bar's April 8, 2011 letter, which was sent by regular U.S. mail,

was returned to the Bar as non-deliverable. See Exhibit A.

12. On or about April 28, 2011, Bar Counsel sent Respondent a letter by

regular U.S. mail to his official Bar address advising him that the matter was being

forwarded to The Florida Bar's Tampa Brach Office for consideration. A copy of

Bar Counsel's April 28, 2011 letter to Respondent is attached hereto as Exhibit B.

13. The Bar's April 28, 2011 letter, which was sent by regular U.S. mail,

was returned to the Bar as non-deliverable. See Exhibit B.

14. On or about June 28,2011, Bar counsel sent Respondent a Notice of

Assignment of Investigating Member by regular U.S. mail to Respondent's official

Bar address advising him of the name, address, and telephone number of the

grievance committee investigating member, and requesting that Respondent

contact the investigating member within ten (lO) days. A copy of Bar Counsel's

June 28, 2011 letter is attached hereto as Exhibit C.

15. The Notice of Assignment of Investigating Member, which was sent

3

by regular U.S. mail, was returned to the Bar as non-deliverable. See Exhibit C.

16. On or about October 11,2011, Bar Counsel sent Respondent a Notice

of Grievance Committee Review by regular U.S. mail and by certified mail to his

official Bar address advising him that the Sixth Judicial Circuit Grievance

Committee "D" would be voting on November 8, 2011, as to whether probable

cause was present for further proceedings. A copy of Bar Counsel's October 11,

2011 letter is attached hereto as Exhibit D.

17. The Notice of Grievance Committee Review, which was sent by

regular U.S. mail and by certified mail, was returned to the Bar as non-deliverable.

See Exhibit D.

18. As of the date of this Complaint, the current location of the

Respondent is unknown, and the Respondent has failed or refused to update his

official Bar address on file with The Florida Bar.

19. On November 8, 2011, the Sixth Judicial Circuit Grievance

Committee "D" found probable cause for further disciplinary proceedings, and the

presiding member of the grievance committee has approved the instant complaint.

20. By reason of the foregoing, the Respondent has violated the following

Rules Regulating The Florida Bar: Rule 4-S.4(g) (A lawyer shall not: fail to

respond, in writing, to any official inquiry by bar counselor a disciplinary agency,

4

as defined elsewhere in these rules, when bar counselor the agency is conducting

an investigation into the lawyer's conduct).

WHEREFORE, The Florida Bar respectfully requests that the Respondent

be appropriately disciplined in accordance with The Rules Regulating The Florida

Bar.

Kenneth Lawrence Marvin Staff Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Florida Bar No. 200999

~£.CAtJ -Leonard Evans Clark Bar Counsel The Florida Bar 4200 George J. Bean Parkway Suite 2580 Tampa, Florida 33607-1496 (813)875-9821 Florida Bar No. 657808


I HEREBY CERTIFY that the original of this Complaint has been furnished by regular U. S. mail to The Honorable Thomas D. Hall, Clerk, the Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-1925; a true and correct copy by U.S. certified mail No. 7008 2810 0001 3141 9560, Return Receipt Requested, and by regular U.S. mail to Michael J. Gross, Respondent, at official bar address of 31 54th Street N., Saint Petersburg, Florida 33710-8017, and a copy by electronic mail' to [email protected]; a copy to Leonard Evans Clark, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496; and a copy to Sandra Fascell Diamond, Esq., Designated Reviewer, at Williamson, Diamond & Caton, P.A., 9075 Seminole Blvd., Seminole, Florida 33772-3150; all this \\\b day of April, 2012.

~~2.~ Kenneth Lawrence Marvin Staff Counsel

5

NOTICE OF TRIAL COUNSEL

PLEASE TAKE NOTICE that the trial counsel in this matter is Leonard Evans Clark, Bar Counsel, whose address is The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496. Respondent need not a~dress pleadings, correspondence, etc. in this matter to anyone other than trial counsel and to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300.

6

JOHN F.lIARKNESS, JR.

THE FLORIDA BAR '651 EAST JEFFERSON STREET

TALLAHASSEE, FL 32399-2300 850/561-5600 EXECUTIVE DIRECTOR WWW.FLORJDABAR.ORG

Mr. Michael J Gross 3154thStN Saint Petersburg, FL 33710-8017

April 8, 2011

Re: Joshua Tilka; The Florida Bar File No. 2011-11,038 (6D)

Dear Mr. Gross:

Enclosed is a copy of an inquiry/complaint and any supporting documents submitted by the above referenced complainant(s). Your response to this complaint is required under the provisions of Rule 4-8.4(g), Rules of Professional Conduct of the Rules Regulating The Florida Bar, and is due in our office by April 25, 2011. Responses should not exceed 25 pages and may refer to any additional documents or exhibits that are available on request. Failure to provide a written response to this complaint is in itself a violation of Rule 4-8.4(g). You are further requested to furnish the complainant with a complete copy of your written response, including any documents submitted therewith.

Please note that pursuant to Rule 3-7.I(b), Rules of Discipline, any reports, correspondence, papers, recordings andlor transcripts of hearings received from either you or the complainant(s) shall become a part of the public record in this matter and thus accessible to the public upon a disposition of this file. It should be noted that The Florida Bar is required to acknowledge the status of proceedings during the pendency of an investigation, if a specific inquiry is made and the matter is deemed to be in the public domain. Pursuant to Rule 3-7.1(f), Rules of Discipline, you are further required to complete and return the enclosed Certificate of Disclosure form.

Finally, the filing of this complaint does not preclude communication between the attorney and the complainant(s). Please review the enclosed Notice for information on submitting your response.

Sincerely,

William W. Wilhelm, Bar Counsel Attorney Consumer Assistance Program ACAP Hotline 866-352-0707 Enclosures (Certificate of Disclosure, Notice of Grievance Procedures, Copy of Complaint, Notice -Mailing Instructions)

cc: Joshua Tilka

EXHIBIT A

Pursuant to Rule 3-7.1(f), Rules of Discipline, you must execute the appropriate disclosure paragraph below and return the form to this office by April 25, 2011. The rule provides that the nature of the charges be stated in the notice to your firm; hpwever, we suggest that you attach a copy of the complaint.

CERTIFICATE OF DISCLOSURE

I HEREBY CERTIFY that on this ___ day of _______ , 201_, a true copy of the foregoing disclosure was furnished to _____________ ,' a member of ~~~~firm~ ,~ if different, to , a member of the law firm of

----------------------------, with which I was associated at the time of the act(s) giving rise to the complaint in The Florida Bar File No. 2011-11,038 (6D).

Michael J Gross

CERTIFICATE OF DISCLOSURE (Corporate/Government Employment)

I HEREBY CERTIFY that on this ___ day of _______ , 201_, a true. copy of the foregoing disclosure was furnished to , my supervisor at (name of agency), with which I was associated at the time ofthe act(s) giving rise to the complaint in The Florida Bar File No. 2011-11,038 (6D).

Michael J Gross

CERTIFICATE OF NON-LAW FIRM AFFILIATION (Sole Practitioner)

I HEREBY CERTIFY to The Florida Bar on this day of , 201 , that I am not presently affiliated with a law firm and was not affiliated with a law firm at the time of the act(s) giving rise to the complaint in The Florida Bar File No. 2011-11,038 (6D).

Miohael J Gross

#..~S.~ THE FLORIDA BAR l~'\l\ 651 EAsT JEFFERSON STREET ~ ~J..~! TALLAHASSEE, FL 32399·2300 \ ... -.. ~ ,,~..#.

Visit our web site: www.FLORIDABAR.org

PERSONAL - REPLY REQUESTED

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Mr. Michael J Gross 3154th StN Saint Petersburg, FL 33710-8017

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JOHN F. HARKNESS, JR. EXECUTIVE DIRECTOR

Mr. Michael J Gross 31 54th StN

THE FLORIDA BAR 651 EAST JEFFERSON STREET

TALLAHASSEE, FL 32399-2300

April 28, 2011

Saint Petersburg, FL 337108017

Re: The Florida Bar File No. 2011-11,038 (6D)

Dear Mr. Gross:

850/561-5600 WWW.FLORIDABAR.ORG

The above- referenced matter has been forwarded to The Florida Bar's Tampa Branch Office for consideration. You may expect to hear from Bar Counsel (in that office) in the near future.

Sincerely,

William W. Wilhelm, Bar Counsel Attorney Consumer Assistance Program ACAP.Hotline 866-352-0707

cc: Mr. Joshua Tilka

EXHIBIT B

1m" THE: FLoRIDA BAR t: ~ 651 EAST JEFFERSON STREET ,~ TALLABABBEB,FL 32399-2300

Visit ollr web site: www.FLORIDABAR.org

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IN THE SUPREME COURT OF FLORIDA (Before a Grievance Committee)

IN RE: Complaint by Joshua Tilka Against Michael J. Gross The Florida Bar File No. 2011-11,038 (6D)

NOTICE OF ASSIGNMENT OF INVESTIGATING MEMBER ANDIOR PANEL

To Complainant Mr. Joshua Tilka 4350 40th Street N. st. Petersburg, FL 33714 Tele: 727/647~4275

To Respondent Mr. Michael J. Gross 31 54th Sl N. Saint Petersburg, FL 33710-8017 Tele: 727/323-1800

The complaint is hereby assigned to the following member of the committee for investigation:

Dede Murtagh 1120 Cordova Blvd., NE

St Petersburg, FL 33704-2443 727/896-6212

Notice is given that this case will be considered by the committee.

Respondent and complainant shall contact the investigating member within ten (1 0) days from the date of this notice to discuss the investigation and disposition of this complaint.

Copies furnished to:

DATED this 28 day of June, 2011.

Leonard Evans Clark, Esq., for Charles Malouf Samaha, Esq., Chair Sixth Judicial Circuit Grievance Committee "D"

Charles Malouf Samaha, Esq., Chair Dede MU11agh, Investigating Member Sandra Fascell Diamond, Designated Reviewer

EXHIBIT C

I::#""~'e, THE FLORIDA BAR t~~ TAMPAOFFlCE f .. \: j. 4200 GEORGEJ. BEAN PARKWAY

'+q~ft~i" SUITE 2580 TIiE~~ID;BAR ~TAMPA, FL 33607

Visit our website: www.FLORIDABAR.org

PERSONAL AND CONFIDENTIAL

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IN THE SUPREME COURT OF FLORIDA (Before a Grievance Committee)

IN RE: Complaint by Joshua Tilka Against Michael J. Gross The Florida Bar File No. 2011-11,038 (6D)

NOTICE OF GRIEVANCE COMMITTEE REVIEW"

TO: Mr. Michael J. Gross Law Offices of Michael J. Gross 31 54th Street North Saint Petersburg, FL 33710-8017

NOTICE: PLEASE BE ADVISED that the Sixth Judicial Circuit Grievance Committee "DII will vote on the above named matter on November 8, 2011, as to whether probable cause is present for further proceedings.

Enclosed are copies of Rules 3-7.4(h) and 3-7.4(i), as amended, and a list of the grievance committee members.

SUBJECT OF VOTE ALLEGATIONS:

The conduct being investigated by the Committee is contained in the documents previously provided.

The Rules Regulating The Florida Bar which may have been violated are:

Rule 4-1.3 (A lawyer shall act with reasonable diligence and promptness in representing a client); Rule 4-1.4 (Communication); Rule 4-1.5 (Fees and Costs for Legal Services) and Rule 4-8.4(g) (Failure to respond, in writing, to any official inquiry by bar counselor a disciplinary agency, as defined elsewhere in these rules, when bar counsel. or the agency is conducting an investigation into the lawyer's conduct).

You have the opportunity to make a written statement, sworn or unsworn, explaining, refuting or admitting the alleged misconduct. This statement must be received by the Investigating Member, Dede Murtagh, at least five (5)

EXHIBIT 0

working days prior tp the scheduled meeting date. Please provide copies of your statement to bar counsel and the committee chair as well. There will be no live testimony and you may not attend.

Pursuant to Rules Regulating The Florida Bar 3-7.4, the respondent has no right to personally appear before the committee. The respondent, however, may request permission to appear before the committee by submitting a written detailed explanation of the need for a hearing which must include a summary of the information anticipated to be developed through personal appearance. The rules do not allow for any right of appeal of the committee's decision allowing or disallowing a personal appearance.

I HEREBY CERTIFY that the original of the foregoing Notice was sent by U.S. Certified Mail No. 7009 2250 0001 3998 8290, Return Receipt Requested and by regular D. S. mail to Mr. Michael J. Gross, Respondent,· Law Offices of Michael J. Gross, 31 54th Street North, Saint Petersburg, FL 33 71 O~80 17, this 11 th day of October, 2011.

cc: Mr. Joshua Tilka Charles Malouf Samaha, Chair

~~.~ Leonard Evans Clark Bar Counsel The Florida Bar Tampa Branch Office 4200 George 1. Bean Parkway, Suite 2580 Tampa, Florida 33607-1496 (8J.3) 875-9821 Florida Bar No. 657808

Dede Murtagh, Investigating Member Sandra Fas?ell Diamond, Designated Reviewer

Rule 3-7 A (h) Rights ~nd Responsibilities of the Respondent. The respondent may be required to testify and to produce evidence as any other witness unless the respondent claims a privilege or right properly available to the respondent under applicable federal or state law. The respondent may be accompanied by counsel. At a reasonable time before any fInding of probable cause or minor misconduct is made, the respondent shall be advised of the conduct that is being investigated and the rules that may have been violated. The respondent shall be provided with all materials considered by the committee and shall be given an opportunity to make a written statement, sworn or unsworn, explaining, refuting or admitting the alleged misconduct.

Rule 3-7 A(i) Rights of the Complaining Witness. The complaining witness is not a party to the disciplinary proceeding. Unless it is found to be impractical by the chair of the grievance committee due to unreasonable delay or other good cause, the complainant shall be granted the right to be present at any grievance committee hearing when the respondent is present before the committee. Neither unwillingness nor neglect of the complaining witness to cooperate, nor settlement, compromise, or restitution will excuse the completion of an investigation. The complaining witness shall have no right to appeal.

6-27-11

SIXTH JUDICIAL CIRCUIT GRIEVANCE COM:MITTEE "D"

Designated Reviewer Sandra F. Diamond, Esq.

Attorney Members Charles Malouf Samaha, Esq., Chair

Heidi L. Hobbs, Esq.

Michael G. Stofer, Esq.

Belinda Barndollar Lazzara, Esq.

Public Members James T. Earle, II

Dede Murtagh

i I

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THE FLORIDA BAR TAMPA OFFICE 4200 GEORGE J. BEAN PARKWAY SUlTE2580 TAMPA, FL 33607


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THE FLORIDA BAR TMtIPA OFFICE

4200 GEORGE J. BEAN PARKW~ SUfl'E2580 TAMPA, FL 33607


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PERSONAL - FOR ADDRESSEE ONLY Mr. Michael J. Gross ro1~~IEU\v~~ ~r OCT 19 2011 I~ Law Offices of Michael J. Gross

3154th St. N Saint Petersburg. FL 33710-8017 FLORrDABAR

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• Print your name and address on the reverse so 'that we can return the card to you.

• Attach tills card to the back of 'the mailplece, or on the front If space permits.

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PS Form 3811, February 2004 DomestIc Return Receipt 1 D25II5-02·M-15<1<l

· . . , RECE~VED

&>uprtmt Court of jflorfbilAPR 1 9 2D12 MANUEL MENENDEZ JR·

CHIEF JUDGE' •

WHEREAS, it officially has been made known to me that it is necessary to

appoint a referee for the Court pursuant to rule 3-7.6(a), Rules Regulating the Florida

Bar, to preside in a disciplinary action brought by The Florida Bar pursuant to Chapter

3 of the Rules Regulating the Florida Bar in the matter of: ,

The Florida Bar vs. Michael J. Gross, Supreme Court Case No. SC12-684

NOW, THEREFORE, I, CharIesT. Canady, under authority vested in me as

Chief Justice of the Supreme Court of Florida, do hereby designate the Honorable

Manuel Menendez, Jr., Chief Judge ofthe Thirteenth Judicial Circuit Court of Florida,

to appoint a referee for the Court in the above matter and, within fourteen days of this

order, to notify the Clerk of the Florida Supreme Court and the parties as to the judge

appointed as referee. The referee shall conduct a case management conference, to be

held nd later than sixty days from the date of appointment, at which the schedule for

the proceedings, including the final hearing date, shall be set. The referee shall have

the option of holding the required case management conference either in person or

telephonically. The referee shall thereafter hear, conduct, try, and determine the

matters presented at the final hearing, and submit findings of fact and

recommendations to the Supreme Court of Florida as provided in rule 3-7.6(m).

Pursuant to rule 3-7.6(m)(I), any order by the referee regarding disposition of the

Case No. SC12-684 Page Two

case shall be merely a recommendation to this Court. Such an order shall not dispose

of the proceedings. This Court shall review and, if appropriate, approve the referee's

recommended disposition order.

Except in cases where the ninety (90) daytime limit provided by rule 3-5.2(g)

applies, the referee's report shall be filed within 180 days of his or her appointment,

unless there are substantial reasons requiring delay.

DONE AND ORDERED at Tallahassee, Florida, on April 17, 2012.

SUPREME COURT OF FLORIDA

". "

Enclosed: Complaint.

IN THE THIRTEENTH JUDICIAL CIRCUIT HILLSBOROUGH COUNTY, FLORIDA

ADMINISTRATIVE ORDER A-2012-023

APPOINTMENT OF THE HONORABLE CLAUDIA R. ISOM AS REFEREE IN BAR DISCIPLINARY ACTION

The Chief Justice of the Florida Supreme Court of Florida has designated the chief judge of this circuit to appoint a referee to preside in a disciplinary action brought by The

. Florida Bar under Chapter 3 of the Rules Regulating The Florida Bar. By the power vested in the chief judge under Florida Rule of Judicial Administration 2.21 5 (b)(2);, the Honorable Claudia R. Isom is appointed as referee in the matter of: The Florida Bar v. Michael J. Gross, Supreme Court Case Number SC12-684.

The Honorable Claudia R. Isom, as referee, is vested with all the powers and prerogatives conferred by the Constitution, laws of the State of Florida, and the Rules Regulating the Florida Bar, concerning a referee for the Supreme Court of Florida in this matter.

Online resources are available for judges serving as referees in proceedings involving disciplinary. action against attorneys, and the unlicensed practice of law. The resources offered at http://www.flcourts.org/gen public/courtedlbar-referee.shtml provide detailed information on the role of a Bar Referee in each of these proceedings and should be reviewed prior to handling this case.

. It is ORDERED in Tampa, Hillsborough County, Florida, on this Z3 ~day of April, 2012.

·~~A~ ---------Manuel Menendez, Jr., Chief Judge

Original to: Thomas D. Hall, Clerk, Supreme Court Copies to: The Honorable Claudia R. Isom

Kenneth L. Marvin, Bar Staff Counsel Michael J. Gross, Respondent Leonard E. Clark, Bar Counsel Sandra Fascell, Esq. Designated Reviewer

Please note: The address for the Honorable Claudia R. !som is: 800 E. Twiggs St., Room 430 Tampa, Florida 33602

-_.---------------------------------


THE FLORIDA BAR,


v. TFB Case No. 2011-11,038 (6D)

MICHAEL J. GROSS,

Respondent.

----------------------~/

NOTICE OF HEARING

TO: Mr. Michael J. Gross 31 54th Street North Saint Petersb~rg, FL 3371.0-8.017

;.. .. ; \ .~.: j :',: '7' .!', .. :,. ~ • . .~:! ~ ... .. : ..... :, . -

DATE: Ma~ 14, 20!~ .

PLACE: 8.0.0 East Twiggs Street Courtroom 413 Tampa, Florida 336.02

TIME: 2:.0.0 p.m.

.",;.",' "

~. • ~ ..I' - .

YOU WILL PLEASE TAKE NOTICE that the above-styled matter will come on for hearing before the Honorable Claudia Rickert Isom, duly appointed Referee, at the time and place above-mentioned for the purpose of:

Case Management Conference and Hearing on.T~~Flori~aBar's Motion for Default.

','-. J

A court reporter has been reserved.

~f.~ Leonard Evans Clark Bar Counsel The Florida Bar Tampa Branch Office 4200 George J. Bean Parkway, Suite 2580 Tampa, Florida 33607-1496 (813) 875-9821· Florida Bar No.: 657808


I HEREBY CERTIFY that the original of the foregoing Notice of Hearing was furnished by First Class mail to the Honora·ble Claudia Rickert Isom, Referee, at 13th Judicial Circuit Probate Division A, 800 East Twiggs Street, Suite 430, Tampa, FL 33602-3541; a copy has been furnished by First Class Mail, to Respondent, Michael J. Gross, whose record bar address is 31 54th Street North, Saint Petersburg, FL 33710-8017 and a copy has been furnished to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this 1st day of May, 2012.

cc: Clark Reporting Service, by email

~·~h~ Leonard Evans Clark, Bar Counsel

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact Leonard E. Clark, Bar Counsel, at (813) 875-9821 at least 7 days before your scheduled appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days. If you are hearing or voice impaired, call 711.

2

---~----.. --- --,-----,-- -------- - ------ - - -- ---- ------- -- ---- - - -~------~- ----- --

IN THE SUPREME COURT OF FLORIDA (Before' a Referee)

THE FLORIDA BAR,


v. TFB Case No. 2011-11,038 (6D)

MICHAEL J. GROSS, -

Respondent.

------------------------1 THE FLORIDA BAR'S MOTION FOR DEFAULT

COMES NOW, The Florida Bar, by and through its undersigned counsel,

and files this Motion for Default pursuant to Rule 1.S00(b), Florida Rules of Civil

Procedure, and states as follows:

1. The Complaint in the above-referenced matter was filed with the

Supreme Court of Florida on April 12, 2012.

2. A copy of the Complaint was served on Respondent by regular mail

and by certified mail to Respondent's official Bar address on April 11, 2012.

3. Mailing registered or certified papers to the last mailing address of an

attorney as shown by the official records is deemed sufficient notice and service,

unless the court shall direct otherwise, pursuant to Rule 3-7 .11 (b) and ( c), Rules

Regulating The Florida Bar.

1

4. Mail that The Florida Bar has been forwarding to Respondent's

official Bar address is being marked as "unable to forward" and is being returned

by the U. S. Postal Service.

S. A copy of the complaint was sent certified mail, return receipt

requested, arid was also returned as "unable to deliver". A copy o/the Domestic

Return Receipt is attached hereto as Exhibit A.

6. Pursuant to Rule 3-7.6(h)(2), Rules Regulating The Florida Bar, and

Rule 1.140( a)(l), Florida Rules of Civil Procedure, a respondent is required to file

an Answer to a Complaint within twenty (20) days of service of a copy of the

Complaint.

7. The time period for filing an Answer has expired. Respondent's

Answer was due on or before May 7,2012 (including five additional days for

mailing).

8. Respondent has failed to file an Answer or any other paper directed

toward the Complaint.

WHEREFORE, The Florida Bar respectfully requests that the Referee enter

a Default against Respondent, Michael J. Gross, as to the allegations contained in

the Bar's Complaint in this disciplinary matter.

2

' ..


~€~~ Leonard Evans Clark Bar Counsel The Florida Bar Tampa Branch Office 4200 George J. Bean Parkway Suite 2580 Tampa, Florida 33607-1496 (813) 875-9821 Florida Bar No.: 657808


I HEREBY CERTIFY that the original of the foregoing Motion for Default was filed in Court before the Honorable Claudia Rickert Isom, Referee, at 13th Judicial Circuit Probate Division A, 800 East Twiggs Street, Suite 430, Tampa, FL 33602-3541; a copy has been furnished by First Class Mail, to Respondent, Michael J. Gross, whose record bar address is 31 54th Street North, Saint Petersburg, FL 33710-8017 and a copy has been furnished to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this I =ri~ day of May, 2012.

~4;J ce.,~b-Leonard Evans Clark, Bar Counsel

3

.-~-- ~~ . ~~-----~. ~ --~---


THE FLORIDA BAR,


v. TFB Case No. 2011-11,038 (6D)

MICHAEL J. GROSS,

Respondent.

------------------------~/

ORDER ON THE FLORIDA BAR'S MOTION FOR DEFAULT

THIS CAUSE came before the Court on May 14,2012 for a Case

Management Conference and Hearing on The Florida Bar's Motion for Default.

Bar Counsel appeared and Respondent failed to appear. The Referee, being fully

advised in the premises, ORDERS and ADJUDGES as follows:

1. The Florida Bar filed a Complaint in the above-referenced matter with

the Supreme Court of Florida on April 12, 2012.

2. On April 11, 2012, The Florida Bar mailed a copy of the Complaint

by regular mail and by certified mail to Respondent's official Bar address.

3. Pursuant to Rule 3-7.l1(b), Rules Regulating The Florida Bar, mailing

of registered or certified papers or notices to the last mailing address of an attorney

as shown by the official records of The Florida Bar shall be sufficient notice and

service. Pursuant to Rule 3-7.11 ( c), reasonable notice shall be effective by the

service of the complaint upon the respondent by mailing a copy thereofby

registered or certified mail return receipt requested to the respondent's last-known

address.

4. Respondent has failed to file an answer or any other response to The

Florida Bar's Complaint.

5. Despite diligent efforts to locate Respondent, his whereabouts are

unknown to The Florida Bar.

6. The Florida Bar's Motion for Default is hereby granted.

7. The factual allegations in The Florida Bar's Complaint are hereby

deemed admitted.

8. If a sanctions hearing is desired by either party, a request must be

submitted in writing no later than c77/III£ 1/ ,2012. In the event that neither

party requests a Sanctions Hearing, the parties are ordered to submit any

memoranda, evidence, and/or proposed Report of Referee concerning the

appropriate discipline to be imposed no later than cWtde'" / F , 2012. Any

such request or submission must be served on the opposing party.

DONE AND ORDERED in chambers at Tampa, Hillsborough County,

Florida, this It day of M~ ',2012.

Honorable Claudia Rickert Isom Referee

Copies to:

Leonard Evans Clark, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607

Respondent, Michael J. Gross, whose record bar address is 31 54th Street North, Saint Petersburg, FL 33710-8017

Kenneth Lawrence Marvin, Staff Counsel, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300

).


THE FLORIDA BAR,


v. TFB Case No. 2011-11,038 (6D)

MICHAEL J. GROSS,

Respondent.

------------------------~/ THE FLORIDA BAR'S MEMORANDUM OF LAW FOR SANCTIONS

Comes now, The Florida Bar, by and through its undersigned counsel, and

files this Memorandum of Law-for Sanctions. Based on the rule violation by

Respondent, case law, and the Florida Standards for Imposing Lawyer Sanctions,

the Florida Bar urges the Referee to recommend admonishment as a sanction. In

addition, the Florida Bar requests that Respondent be assessed the costs of this

disciplinary proceeding.

SUMMARY OF FACTS

The Bar filed a one-count Complaint against Respondent alleging that he

failed to respond to an official Bar inquiry. Specifically, the Bar alleged that

Respondent violated: Rule 4-8.4(g) (A lawyer shall not fail to respond, in writing).

In December 2009, Respondent was retained by Mr. Joshua Tilka for legal

representation in a family law matter. Mr. Tilka paid $350.00 to Respondent at the

beginning of the representation and then an additional $600.00 in February 2010.

A few months after accepting representation, Respondent told Mr. Tilka that he

was retiring and handing over his cases to attorney Jennifer Isaksen, for no

additional fees. In May 2010, Respondent infonned Ms. Isaksen that he needed a

break from practicing law and he persuaded her to take over the representation of

his family law cases. Respondent failed to retire from the Florida ~ar and

disappeared.

On June 18, 2010, Respondent was placed on the inactive list with the

Florida Bar pursuant to his election to be placed on the list in lieu of retiring. The

Bar assigned an investigator to locate Respondent in June 2010 and May 2011. The

result of the investigation detennined that, Respondent might have relocated to

Costa Rica or a Scandinavian country, however, the investigator was unable to

confinn this infonnation. On March 21,2011, Mr. Tilka filed an

Inquiry/Complaint against Respondent with The Bar, alleging that Ms. Isaksen had

no record of Mr. Tilka's second payment in the amount of$600.00, and that he had

to pay her additional funds to represent him.

On April 8, 2011, Bar Counsel sent Respondent a letter by regular U.S. mail

to his official Bar address advising him of Mr. Tilka's Inquiry/Complaint,

requesting his respons~ within fifteen (15) days, and advising Respondent that a

response was required pursuant to Rule 4-8.4(g). The Bar's April 8, 2011 letter,

2

which was sent by regular U.S. mail, was returned to the Bar as non-deliverable.

Additionally, the Bar has sent several other correspondences to Respondent's

official Bar Address that was returned as non-deliverable. Currently, Respondent's

location is unknown, and he has failed or refused to update his official Bar address

on file with The Florida Bar as required by rule.

SUMMARY OF PROCEEDINGS

The aforementioned one-count complaint was filed with The Supreme Court

of Florida on April 12, 2012. Respondent failed to file an Answer to the

complaint As a result, the Florida Bar filed a Motion for Default on May 14,

2012. A hearing was set for May 14,2012, Respondent was ordered to appear, and

a Notice of Hearing was ,sent to Respondent. On May 14, 2012, Respondent failed

to appear and the Referee granted The Bar's Motion for Default. The default the

Referee entered against Respondent constituted a formal stipulation by Respondent

as to the ,90rrectness of the factual allegations contained in the Bar's complaint.

See Florida Bar v. Shoureas, 892 So.2d 1002, 1005 (Fla. 2004). The Referee

ordered that if any party desired a sanction hearing, it must be requested in writing

no later than June 11,2012. Respondent failed to request a Sanctions Hearing as

required by Order of the Referee.

3

SUMMARY OF LEGAL AUTHORITY

Due to Respondent's violation of Rule 4-8.4(g), of the Rules Regulating the

Florida Bar, the Florida Bar urges the Referee to recommend an admonishment as

an appropriate resolution to this case. This sanction is supported by the case law

and the Florida Standards for Imposing Lawyer Sanctions.

The Florida Supreme Court has disciplined attorneys who have engaged in

similar misconduct. In Florida Bar v. Grigsby, 641 So.2d 1341 (Fla. 1994), the

Court found in part that, a public reprimand was an appropriate sanction for an

attorney who violated Rule 4-8.4. Grigsby was appointed to represent an indigent

inmate who subsequently filed a grievance with the Bar alleging that Grigsby

failed to communicate with him concerning the case. ld at 1342. Twice the Bar

asked Grigsby for a response and a copy of a letter he wrote the inmate. ld.

Grigsby never replied with the request and the case was eventually referred to a

grievance committee. ld.

The referee found that Grigsby suffered from clinical depression, which

explained his conduct, but did not excuse it. ld. The referee determined that an

appropriate sanction for his conduct was a public reprimand. ld. The referee's

recommendation was partially due to Grigsby having two prior disciplinary cases.

ld.

4

In Florida Bar v. Greenspan, 708 So.2d 926 (Fla. 1998), the Court found in

part that, a public reprimand was an appropriate sanction for an attorney who failed

to cooperate with the disciplinary process. The Bar alleged in a three-count

complaint that Greenspan failed to' comply with certain advertising rules and that

he failed to respond to the Bar inquiry in violation of Rule 4-8.4(g). Id at 927. The

Bar filed a formal complaint, which Greenspan failed to respond as required by

Rule 3-7.6(g)(2), which resulted in the entry of a default judgment. Id. Based on

the default, the referee recommended that Greenspan be found guilty of the ethical

violations charged by the Bar and that he be suspended from the practice of law for

twenty (20) days, to be followed by a one-year term of probation. Id.

On review the Court approved the guilty finding but not the sanction. Id at

928. The Court found in part that, "A public reprimand is called for here in light of

Greenspan's eighteen-year unblemished record as well as the fact that Greenspan's

original transgression was rather minor." Id.

Similar to Grigsby and Greenspan, Respondent failed to respond to the Bar

in violation of Rule 4-8.4(g). Additionally, like Mr. Greenspan, Respondents'

failure to answer the Bar complaint resulted in a default judgment. However,

Respondent was not charged with violating any other Bar rules, unlike Mr. Grigsby

and Mr. Greenspan. Also, unlike Mr. Grigsby, Respondent has.no prior

disciplinary history. Finally, despite not retiring in an official manner Respondent

5

did inform his clients that he was going to cease practicing law for an unspecified

time and made arrangements for them with new representation. There is no

indication that Respondent is aware of this matter as ~ll mail has been returned.

Accordingly, a written admonishment would be an appropriate resolution to this

case.

Finally, in addition to the aforementioned case law, the Florida Standards for

Imposing Lawyer Sanctions provide further support for an admonishment. The

Standards provide a format for Bar counsel, referees, and the Florida Supreme

Court to determine the appropqate sanction in attorney disciplinary matters.

Several specific standards apply in this case:

Standard 3.0 GENERALLY

In imposing a sanction after a finding of lawyer misconduct, a court should

consider the following factors:

(a) the duty violated;

(b) the lawyer's mental state;

(c) the potential or actual injury caused by the lawyer's misconduct; and

(d) the existence of aggravating or mitigating factors.

Standard 7.0 Violations of Other Duties Owed as a Professional

Absent aggravating or mitigating circumstances, and upon application of the

factors set out in Standard 3.0, the following sanctions are generally appropriate in

6

cases involving false or misleading communication about the lawyer or the

lawyer's services, improper communication of fields of practice, improper

solicitation of professional employment from a prospective client, unreasonable or

improper fees, unlicensed practice of law, improper withdrawal from

representation, or failure to report professional misconduct.

7. 4 Admonishment is appropriate when a lawyer is negligent in determining

whether the lawyer's conduct violates a duty owed as a professional, and causes

little or no actual or potential injury to a client, the public, or the legal system.

Standard 9.2 Aggravation

Standard 9.22 lists aggravating factors that may justify an increase in the

degree of discipline to be imposed. The applicable aggravating factors include:

None.

Standard 9.3 Mitigation

Standard 9.32 lists mitigating factors that may justify a reduction in the

degree of discipline to be imposed. The applicable mitigating factor is:

9.32(a) Absence of a prior disciplinary record

After applying the Florida Standards for Imposing Lawyer Sanctions, and

considering the Supreme Court decisions in Grigsby and Greenspan, a sanction of

an admonishment is the minimum discipline appropriate in this case.

7

, \'

CONCLUSION

Based on the rule violation by Respondent, case law, and the Florida

Standards for Imposing Lawyer Sanctions, the Florida Bar urges the Referee to

recommend a written admonishment-as a sanction, with the report of referee

serving as the admonishment, and assess the costs of this disciplinary proceeding.


~f."C-4rk Leonard Evans Clark Bar Counsel The Florida Bar 4200 George J. Bean Pkwy. Suite 2580 Tampa, Florida 33607 (813) 875-9821 Florida Bar No. 0657808


I HEREBY CERTIFY that the original of the foregoing Memorandum of Law for Sanctions was filed by regular U.S. Mail to the Honorable Claudia Rickert Isom, Referee, at 13th Judicial Circuit Probate Division A, 800 East Twiggs Street, Suite 430, Tampa, FL 33602-3541; a copy has been furnished by First Class Mail, to Respondent, Michael J. Gross, whose record bar address is 31 54th Street North, Saint Petersburg, FL 33710-8017 and a copy has been furnished to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this. 26th day of June, 2012.


8

. JOHN F. HARKNESS, JR. EXECUTIVE DIRECTOR

Honorable Claudia Rickert Isom·

THE FLORIDA BAR TAMPA BRANCH OFFICE

4200 GEORGE J. BEAN PARKWAY, SUITE 2580 TAMPA, FLORIDA 33607-1496

June 26, 2012

13th Judicial Circuit Probate Division A 800 East Twiggs Street, Suite 430 Tampa, FL 33602-3541

Re: Complaint of Joshua Tilka against v. Michael J. Gross Supreme Court Case No. SC12-684 The Florida Bar File No. 2011-11,038 (6D)

Dear Judge Isom:

RECE\VED JUN '2. 7 2m2

JUDGE CLAUDIA R. ISOM

(813) 875-9821 www.FLABAR.ORG

Enclosed is the proposed Report of the Referee in the above-referenced case. The Supreme Court requires the Report of the Referee be filed in MS Word format bye-mail, as well as by the original by mail. The e-mail address to be used is [email protected].

Also enclosed is the original of our Memorandum of Law for Sanctions, Motion to Assess Costs, Statement of Costs and Certification of Index. My assistant will email a draft of the Index of Record so that it can be fmalized and forwarded with the record.

If the proposed Report of the Referee meets with your approval, please file it with the Supreme Court, together with your entire file, constituting the record of these proceedings. A PowerPoint presentation containing information helpful in preparing the record will be forwarded to you by electronic mail.

Please also ask your judicial assistant to provide conformed copies of the Report of Referee, Index of Record and Certification of Index, to the individuals on the service list. The envelopes are provided for your use.

If you or your judicial assistant has any questions at all about the process, please do not hesitate to call.

Sincerely yours,

~ ... ~ .. ~ ... . '0; . ,". " .

. ,' '," .," '" .. ,- '. :.... ..' ..... , .. ,'," . ", _ ......... . . ". .. .


LEC/cs

Enclosures: Administrative Order No. AOSC04-84, proposed Report of Referee, Memorandum of Law for Sanctions, Statement of Costs, Motion to Assess Costs, and Certification of Index

cc: Mr. Michael J. Gross - w/enclosures

Documents

IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR ...€¦ · recommendation was partially due to Grigsby's two prior disciplinary cases. ... 4200 George J. Bean Parkway, Suite 2580,