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1
No. SC01-251
IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant/Appellee,
v.
LEONARD MARK DACHS,
Petitioner/Respondent.
On Petition For Review of the Report of the RefereeFor the Eleventh Judicial Circuit
PETITIONER’S REPLY BRIEF
STEPHEN BRONIS LEONARD M. DACHS, pro seZUCKERMAN SPAEDER LLP 5799 Southwest 91 Street201 South Biscayne Blvd. Miami, FL 33156Miami Center, Suite 900 Telephone: (305) 665-6288
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS........................................................... i
TABLE OF AUTHORITIES..................................................... ii
STATEMENT OF THE CASE AND OF THE FACTS......... 1
ARGUMENT.............................................................................. 6
THE REFEREE’S RECOMMENDATION OF DISBARMENTWAS EXCESSIVE IN LIGHT OF THE NATURE OFPETITIONER’S CONVICTION AND THE EXTENSIVEMITIGATING CIRCUMSTANCES IN THIS CASE
CERTIFICATE OF SERVICE................................................ 15
CERTIFICATE OF COMPLIANCE...................................... 15
ii
TABLE OF AUTHORITIES
Page
CASES
Caruso v. State645 So.2d 389, 394 (Fla. 1994)..................................... 4
Florida Bar v. Baker................................................................ 13-14
27 Fla. L. Weekly S111 (Fla.2/21/02)
Florida Bar v. Carbonaro........................................................ 11464 So.2d 549 (Fla. 1985)
Florida Bar v. Fussell.............................................................. 9,11
179 So.2d 852, 855 (Fla. 1965)
Florida Bar v. Hirsch............................................................. 14342 So.2d 970, 971 (Fla. 1977)
Florida Bar v. Kassier............................................................. 12-13
711 So.2d 515, 517 (Fla. 1998)
Florida Bar v. Maynard........................................................... 8672 So.2d 530 (Fla. 1996)
Florida Bar v. Rightmeyer...................................................... 7616 So.2d 953, 955 (Fla. 1993)
iii
Florida Bar v. Silverman........................................................ 8468 So.2d 229 (Fla. 1985)
Florida Bar v. Summers......................................................... 13728 So.2d 739, 742. (Fla. 1999)
iv
Florida Bar v. Wilson.............................................................. 8425 So.2d 2 (Fla. 1983)
Florida Bar. v. Wolis................................................................ 6-8
783 So.2d 1057 (Fla. 2001)
North Carolina v. Alford.......................................................... 10400 U.S. 25, 91 S.Ct. 160 (1970)
United States v. Davis............................................................... 5516 F.2d 574 (7th Cir. 1975.)
OTHER AUTHORITIES
18 U.S.C. 1503.......................................................................... 1
28 U.S.C. 1257.......................................................................... 1
F. R. Crim. P. 11(f)................................................................... 5
Rule 4-8.4(d), Rules Regulating the Florida Bar..................... 9
Standard 6.21, Florida Standards for Imposing Lawyer Sanctions 9
1
Copies of the Information and related exhibits relied upon by the parties were attachedto the Bar’s Motion for Partial Summary Judgment and Mr. Dachs’ Response thereto.As in our Initial Brief, these pleadings and the attached documents will be referencedherein as “Motion” and “Response”, followed where necessary by the appropriateexhibit reference. Citations to the transcript of the Final Hearing before the HonorableCatherine Pooler, the Referee in this matter, will be referenced by the letter “T”followed by the appropriate page number. Exhibits entered into evidence during thehearing will be referred to by the party offering the exhibit and exhibit number.
2
28 U.S.C. 1257 is entitled “State courts; certiorari” and establishes the jurisdiction ofthe U.S. Supreme Court to review by writ of certiorari final judgments or decreesrendered by the highest court of a State.
v
STATEMENT OF THE CASE AND OF THE FACTS
At the very outset of its brief, the Bar erroneously claims that Mr. Dachs
“pled guilty to one count of a 47 count indictment for violating 28 U.S.C. 1257.”
Answer Brief at 1. In fact, Mr. Dachs pleaded guilty to a single-count Information
charging him with obstruction of justice under 18 U.S.C. 1503. Motion, Ex.”A.”
1 2
The Bar claims that “Respondent has omitted most of the salient facts,
particularly those which directly pertain to the Argument presented in his brief.”
Answer Brief at 2. The Bar then quotes (or misquotes as the case may be) portions
3
See, e.g. Respondent’s Initial Brief at 3-4: “Mr. Dachs agreed to plead guilty to anInformation charging him with obstructing justice by knowingly violating the protectiveorder issued in the Falcon case by Judge Moreno. Motion, Ex. “C.” The Informationalleged that Mr. Dachs received approximately $1.8 million in the four and one halfyear period between October 15, 1991 and March 12, 1996. Motion, Ex. “A”.
vi
of the transcript of the plea colloquy. These alleged “omissions” are addressed
below:
a) The trial court’s description of the offense pertaining to Mr. Dachs’
knowing and willful violation of the protective order in the Falcon case, followed
by AUSA Sullivan’s description of the Information: Id., at 2-4. Simply stated,
there has been no omission by Respondent. The nature of the charge is fully
addressed in our Initial Brief at pp. 1, 3-4, 23-25.3
b) AUSA Sullivan’s statement that Mr. Dachs “saw huge quantities of
drugs at [defendants’] homes and received payment for his services at their
homes: Answer Brief at 4. The Bar fails to acknowledge that Mr. Dachs’ counsel
disputed the accuracy of AUSA Sullivan’s entire proffer, with the exception of
admitting that Mr. Dachs accepted legal fees in violation of the protective order
entered by Judge Moreno. Motion, Ex. “D” at 33-35. Further, as the Bar well
knows, this particular allegation, made by government witness and confessed
perjurer Melvyn Kessler, was specifically addressed and denied by Respondent’s
4 Like Kessler, Ms. Bonachea is also an admitted perjurer.
vii
lawyer during the plea colloquy. Id., at 34
c) AUSA Sullivan’s statement summarizing Marilyn Bonachea’s testimony:
Answer Brief at 4-5. Again, as the Bar knows, the pertinent portions of Ms.
Bonachea’s allegations4 were also denied by Respondent’s lawyer during the plea
colloquy. Motion, Ex. “D” at 34.
d) AUSA Sullivan’s description of the checks received by Mr. Dachs, and
the use of such checks by Magluta and Falcon to pay all the defense lawyers:
Answer Brief at 5. Despite the Bar’s claim, this information was not omitted from
Mr. Dachs’ brief, but instead has been relied upon him throughout these
proceedings to demonstrate that he “was paid via check in the same way that Roy
Black, Albert Krieger, Jeffrey Weiner and other counsel were paid...” Initial Brief
at 10, 29, 34.
e) The Bar’s claim that “[i]n 1991, the Respondent had actually
functioned as a distributor of the defendants’ funds to pay the fees due to the
Ackerman, Senterfitt law firm.”: Answer Brief at 5. Not even AUSA Sullivan,
who sought to place as negative a spin as possible in his proffer, made this
accusation. Sullivan stated that Mr. Dachs took responsibility for ensuring payment
5
Referee Pooler read Mr. Dachs’ deposition in connection with the summary judgmentproceedings, and the deposition was admitted into evidence at the final hearing. T. 33-34.
viii
of Ackerman, Senterfitt’s fees for representing Falcon and Magluta’s parents in
civil forfeiture litigation. Motion, Ex. “D” at 30-33. Again, the accuracy of AUSA
Sullivan’s entire proffer was disputed by Mr. Dachs’ counsel, with the exception
of admitting that Mr. Dachs accepted legal fees in violation of the protective order
entered by Judge Moreno. Id., at 33-35.
This allegation by the Bar is particularly unwarranted where Bar counsel
extensively examined Mr. Dachs about this matter at his deposition.5 Mr. Dachs
specifically denied these allegations (as well as others made by Mr. Sullivan during
the plea colloquy.) Mr. Dachs testified that he told the Ackerman, Senterfitt lawyers
to stop sending him bills because he was not responsible for the payment of their
fees. Dachs deposition of June 14, 2001 at 88-92.
The Bar’s reliance on AUSA Sullivan’s proffer is entirely inappropriate.
First, as noted above, the Bar has misrepresented many of the allegations set forth
in the proffer. Second, AUSA Sullivan’s proffer was not proof or evidence, but
merely a recitation of what he believed his witnesses would say. The proffer was
erroneous in material respects, and the accuracy of that proffer was challenged by
ix
counsel for Mr. Dachs, who stated that Mr. Dachs was only “prepared to admit to
conduct which would satisfy the requirement of violating the statute [charged] in
the Information.” Motion, Ex. “D” at 34. The allegations contained in the proffer
were not all necessary to the conviction nor admitted by Mr. Dachs as part of his
guilty plea. Since these accusations were not central to the crime or plea, the plea
was accepted and the factual dispute was never resolved.
Here and throughout its brief, the Bar demonstrates a lack of comprehension
of what a plea colloquy is designed to accomplish. F. R. Crim. P. 11(f) requires
a court to satisfy itself that there “is a factual basis for the plea.” The rule “does not
specify that any particular type of inquiry be made.” Fed. R. Crim. P. 11(f),
Advisory Committee's Notes. A defendant’s acknowledgment of the truth of all the
facts essential to guilt is not necessary to satisfy the factual basis requirement of
Rule 11, and a court may accept a guilty plea where the defendant claims the
prosecution’s witnesses are lying. United States v. Davis, 516 F.2d 574 (7th Cir.
1975.) The record before the referee indicates that most of the allegations relied
upon by the Bar in its Answer Brief were denied by Respondent through his
counsel during the plea colloquy and by Respondent under oath at his deposition.
Finally, the Bar should be precluded from relying upon the unsworn,
unproven, and erroneous allegations contained in AUSA Sullivan’s proffer where
x
the Bar did not rely upon these allegations in the proceedings below. The
Complaint of the Florida Bar sought the imposition of disciplinary sanctions against
Mr. Dachs based solely upon his guilty plea to and conviction of obstruction of
justice. Similarly, its Motion for Partial Summary Judgment focused solely on the
charge to which Mr. Dachs pleaded guilty, and the fact of that conviction. At the
final hearing, the Bar raised two new issues: Mr. Dachs’ supposedly false statement
in the affidavit he submitted in support of his opposition to the partial summary
judgment motion, and his admission to the use of cocaine 20 years ago. T. 16, 33.
The Bar did not call Kessler, Bonachea or any lawyers from Ackerman, Senterfitt
at the final hearing, and never argued that Mr. Dachs’ punishment should be based
upon anything contained in AUSA Sullivan’s proffer. Not surprisingly, Referee
Pooler’s decision fails to refer to the proffer or any of the hearsay allegations
contained therein. Thus, the matters contained in that proffer are both legally and
factually irrelevant to this Court’s decision.
ARGUMENT
THE REFEREE’S RECOMMENDATION OF DISBARMENT WASEXCESSIVE IN LIGHT OF THE NATURE OF PETITIONER’S
CONVICTION AND THE EXTENSIVE MITIGATING CIRCUMSTANCESIN THIS CASE
The Bar principally relies upon Florida Bar. v. Wolis, 783 So.2d 1057 (Fla.
xi
2001), calling it “similar in virtually every respect.” Answer Brief at 10. Wolis,
however, is easily distinguishable.
Wolis was in-house counsel for a company under investigation by the
Securities and Exchange Commission (SEC). He pleaded guilty to an indictment
that alleged that he filed false reports with the SEC. “Especially pertinent” were the
referee’s findings that Wolis was responsible for administrative operations of the
company, and had not only prepared the narrative portions of the company’s
quarterly and annual reports, but also signed the annual reports filed with the SEC.
The referee found that these reports overstated the company’s revenues and
reported profits when the company was actually operating at substantial losses,
and were designed to make the company look profitable and active in order to
boost the price of its stock, of which Wolis owned 35,000 shares. The referee
further found that Wolis had lied under oath during the SEC’s investigation.
In upholding the referees’ recommendation of disbarment, this Court relied
upon Florida Bar v. Rightmeyer, 616 So.2d 953, 955 (Fla. 1993) (stating that there
is no ethical violation more damaging to the legal profession and process than lying
under oath, and that a lawyer who knowingly and deliberately seeks to corrupt the
legal process can logically expect to be excluded from it).
Mr. Dachs accepted legal fees in violation of a protective order. He did not
xii
submit any false statements, did not lie under oath and did not seek to defraud
anyone. (By acting to inflate the price of his 35,000 share of stock, Wolis sought
to defraud the potential purchasers of that stock.) His witnesses unanimously
testified that the acceptance of the bona fide legal fee by Mr. Dachs did not
interfere with the due administration of justice. His case bears no rational
relationship to Wolis’ conduct.
Florida Bar v. Silverman, 468 So.2d 229 (Fla. 1985) is the only other case
relied upon by the Bar. The one-page opinion reveals nothing about the nature of
Silverman’s obstruction of justice conviction. This case too is easily
distinguishable, where Silverman agreed to disbarment.
Importantly, Mr. Dachs cited a plethora of decisions by this Court imposing
lesser sanctions than disbarment for lawyers convicted of crimes equally or more
egregious than his. Initial Brief at 43-45. The Bar has not attempted to dispute the
relevancy or authoritativeness of any of these decisions. The Bar fails to even
discuss Florida Bar v. Maynard, 672 So.2d 530 (Fla. 1996) and Florida Bar v.
Wilson, 425 So.2d 2 (Fla. 1983), the only cases cited by the referee. The Bar
implicitly concedes the inapplicability of those cases.
Every witness at the disciplinary hearing testified that the acceptance of the
fee by Mr. Dachs did not interfere with the due administration of justice. It is
xiii
uncontested that Mr. Dachs did nothing to undermine the legitimacy of the judicial
process of arriving at an appropriate verdict in the case involving Magluta and
Falcon. He did not suborn perjury, falsify evidence, bribe jurors or witnesses or
do anything else to adversely affect the integrity of the truth finding process in the
case. Accordingly, in his Initial Brief, Mr. Dachs argued that his receipt of legal fees
in violation of the protective order, albeit wrongful and illegal, did not “obstruct or
interfere” with the due administration of justice as those terms are defined by the
applicable case law. Initial Brief at 25-26.
The Bar asserts that since Mr. Dachs is not appealing the entry of partial
summary judgment, he is precluded making this argument to this Court. Answer
Brief at 13-14 The Bar misconstrues the argument, which is directed, not at Rule
4-8.4(d), as the Bar suggests, but rather the applicable Florida Standards for
Imposing Lawyer Sanctions, and particularly Standard 6.21. Standard 6.21
provides that “disbarment is appropriate when a lawyer knowingly violates a court
order and causes serious injury or potentially serious injury to a party or causes
serious or potentially serious interference with a legal proceeding.” (emphasis
supplied) Mr. Dachs is certainly entitled to distinguish his conduct from that of
lawyers such as Wolis, and he is entitled to argue that the title of the federal statute
he violated is not the last word on the subject. See, Florida Bar v. Fussell, 179
6
Referee Pooler did, however, find that Mr. Dachs had cooperated fully in thedisciplinary proceedings. Report at 5
xiv
So.2d 852, 855 (Fla. 1965). (Fussell had the due process right to explain "the
circumstances surrounding the offense and also in mitigation of the penalty.")
Mr. Dachs submitted an affidavit and testified at the final hearing (and before
a federal grand jury) that he engaged in willful blindness in choosing to ignore
certain facts that caused or should have caused him to question whether his legal
fees fell within the scope of the protective order. Referee Pooler found the affidavit
and testimony “materially inconsistent” with Mr. Dachs’ testimony during his guilty
plea solely because Mr. Dachs admitted his guilt and did not enter an “Alford”
plea. Report at 4.6 The Bar spends but three paragraphs of its brief attempting to
support this finding, relying mostly upon the Sullivan proffer. Answer Brief at 15-
16, 17-18. For the reasons previously expressed, the Sullivan proffer is irrelevant.
As to the purported “inconsistency” between Mr. Dachs’ affidavit and
testimony in this case and his plea colloquy, the Bar has failed to cite any case law
supporting the proposition that a defendant’s failure to enter an “Alford” plea
establishes his direct knowledge of a material fact and not his willful blindness
thereto, where willful blindness is the functional and legal equivalent of direct
knowledge, and where Judge Seitz did not ask Mr. Dachs to provide any details
xv
regarding his state of mind. A plea under North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160 (1970), is one where the defendant asserts his innocence, but pleads
guilty or nolo contendere because the plea is in his best interests. Mr. Dachs has
never said he was innocent of the charge to which he pleaded guilty; he has simply
sought to explain his state of mind, as is his right under Florida Bar v. Fussell,
supra. Mr. Dachs testified truthfully throughout the proceedings below. His
testimony is internally consistent and corroborated by the testimony of Albert
Krieger regarding their conversations about the fees, as well as the fee checks to
Dachs, Krieger, Roy Black, and Jeffrey Weiner introduced into evidence in this
case.
The Bar has chosen not to challenge many of the contentions made by Mr.
Dachs regarding aggravating and mitigating circumstances, which, after all, are the
heart of the issue in this case where Mr. Dachs contests the recommendation of
disbarment. For example, the Bar does not contest that Mr. Dachs has a lengthy
history of providing pro bono legal services, or that such history is a mitigating
factor, but instead faults Mr. Dachs for failing to provide authority that assistance
to his fellow inmates is pro bono work. Mr. Dachs, relying upon Florida Bar v.
Carbonaro, 464 So.2d 549 (Fla. 1985), has argued that his personal hardship
should have been considered as a mitigating factor. The Bar did not respond to
xvi
this argument, nor did the Bar respond to Mr. Dachs’ argument that the referee
failed to consider the imposition of other sanctions and penalties on Mr. Dachs.
The Bar’s silence on this and other matters of mitigation speaks volumes.
In shotgun fashion, the Bar attempts to dispute Mr. Dachs’ remaining
arguments by simply denying each in a sentence or two. Answer Brief at 16-17.
There is little for Mr. Dachs to respond to. The unanimous and uncontradicted
testimony at the final hearing contradicts the Bar’s claim that Mr. Dachs failed to
prove that he could have earned more had he turned down the Falcon case. Every
witness testified that Mr. Dachs was underpaid for five years of work, and that he
did not act from a selfish motive. The record likewise amply demonstrates that Mr.
Dachs did make a timely good faith effort to rectify the consequences of his action
where both the government and Judge Seitz acknowledged that Mr. Dachs had fully
accepted responsibility for his conduct. The Bar’s statement that “inexperience
with protective orders is not recognized in any case as a mitigating factor,” proves
our point exactly. Such orders are rare even today, and were virtually unheard of
in 1991.
Finally, the Bar’s statement that Mr. Dachs “asserts that it was the Bar’s
position that a felony conviction should automatically result in disbarment,” is
simply wrong, where that assertion appears nowhere in the Initial Brief. The
xvii
statement by Bar counsel at the hearing, that “[i]t would be a whole other story if
we were here today on the underlying conduct and there was no guilty plea…”
T. 207 is instead a concession that the Bar would not be seeking disbarment but
for the fact of the conviction. Bar counsel’s attempt at damage control was and is
incomprehensible.
In Florida Bar v. Kassier, 711 So.2d 515, 517 (Fla. 1998) this Court stated
that, “the extreme sanction of disbarment is to be imposed only in those rare cases
where rehabilitation is highly improbable.” Mr. Dachs amply demonstrated his
interim rehabilitation by voluntarily teaching and providing assistance to his fellow
inmates, paying his fine and Bar dues, keeping up with his continuing legal
education requirements and (as so found by the referee) cooperating with the Bar’s
investigation. Mr. Dachs cited a number of cases supporting his contention that he
is in the process of rehabilitation, yet the Bar’s response is merely to state, without
argument, that teaching fellow inmates is not evidence of rehabilitation.
Finally, this Court’s recent decision in Florida Bar v. Baker, 27 Fla. L.
Weekly S111 (Fla. January 21, 2002) also supports Mr. Dachs’ position. Baker and
his wife had marital problems, and Baker forged her name to legal documents
relating to the sale of the marital home. He solicited his secretary to engage in
criminal conduct by notarizing the forged signatures, and cheated his wife out of
xviii
her share of the proceeds of the sale of the home. Baker falsely testified before the
referee that his wife knew of and consented to the sale of the home.
After upholding the referee’s findings of fact and recommendations of guilt,
this Court rejected the referee’s recommendation of disbarment. “Disbarment is an
extreme sanction that is reserved for the most egregious misconduct,” citing
Florida Bar v. Summers, 728 So.2d 739, 742. (Fla. 1999.) Instead this Court
suspended Baker for ninety-one days. “This is severe discipline because Baker will
be required to demonstrate proof of rehabilitation in order to achieve
reinstatement.” (emphasis supplied)
This Court has stated that “disbarment occupies the same rung of the ladder
in these proceedings as the death penalty in criminal proceedings.” Florida Bar v.
Hirsch, 342 So.2d 970, 971 (Fla. 1977). Mr. Dachs’ conduct, considered in light
of his rehabilitation and the other substantial mitigating factors, does not warrant
the death penalty of sanctions imposed on lawyers. Mr. Dachs asks this Court to
impose the “severe discipline” of a three-year suspension. This is not a new stance
he is asserting in light of the referee’s recommendation, but rather, a position he has
taken throughout the course of the proceedings below. T. 242
Respectfully submitted,
xix
ZUCKERMAN SPAEDER LLPMiami Center201 South Biscayne BoulevardMiami Center, Suite 900Miami, Florida 33131Tel: (305) 579-0110Fax: (305) 579-9749
_________________________________STEPHEN J. BRONIS, ESQUIREFlorida Bar No. 145970Counsel for L. Mark Dachs
__________________________ L. Mark Dachs, pro se
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing ReplyBrief was delivered via United States mail this 19th day of February, 2002, to thefollowing individuals:
Randi Klayman LazarusBar CounselThe Florida BarSuite M-100, Rivergate Plaza444 Brickell AvenueMiami, Florida 33131
Staff CounselThe Florida Bar650 Apalachee ParkwayTallahassee, FL 32399-2300
________________________________STEPHEN J. BRONIS, ESQUIRE