Filing # 60341814 E-Filed 08/14/2017 11:05:00 AM RECEIVED, 08/14/201711:08:49 AM,Clerk,Supreme Court BOAND'S EXIJIBIT No.
REVISED JANUARY 10, 2017
FERGUSON, DONALD L. 30380
BOARD EXHIBITS
1. List of Exhibits 2. Public Findings of Fact, Conclusions of Law, and Recommendation dated July 1, 2013. 3. Public Report and Recommendation dated July 17 ,2013. 4. Order of Supreme Court of Florida dated February 13,2014. 5. Certified copy of the updated Florida Bar Application, including all amendments, executed on February 10,2016. 6. Specifications and Procedures for Formal Hearings before the Florida Board of Bar Examiners. 7. Answer to Specifications 8. Formal Hearing Transcript held April 12,2013. 9. Transcript of investigative hearing held May 18,2012, with attached exhibits. 10. Certified copy of the Florida Bar Application, including all amendments, executed on January 12,2011. 11. Statement of Rehabilitation executed on May 16, 2016. 1s1
L I read the notice of reLease. In ttre uBBer Lef t-hand
2 corner is this box and it' says: "This notice of
3 reLease of federal tax lien rel-eases yoll from alL
4 federal taxes owed, in add.ition to pena].ties and'
5 interest. " And iE cited to sections of the IRS Code.
6 I iruned.iately went to the sections of the
7 IRS Code to make sure that what I was reading was
8 what I was assimiLating. And. sure enougrh, it says
9 ttrat wfuen you receive this notice, it means ttrat your 10 s].ate is clean
11 And so I assumed. that that was their way of L2 granting my petition for BenaLty abat'ement, aLthough 13 ttrey never resBonded. d.irectly, in l-igrht of the amount, L4 ttrat I paid 15 a. And 15 A. and. begran to govern my life accord.ingly. L7 A. ttrat was APriL the 4th of ?OLA? 18 A. Yes.
19 a . I 'm Looking at GeneraL Corrnsel Page 15I , 20 and. it appears to be the langruagre in here to whieh I 2L beLieve you aLIuded was "ttas satisfied the taxes
2 Listed below and aLl- st,atutory additions. "
3 Did you think 'rstatutory additions" eovered
4 penaLties and. interest? 25 A. That's exactLy what the code teLLs you it FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS L52
1 says.
2 Q. Did, in fact,, it turn out, that such was the
3 case?
4 A. Not at a1L. A substantiaL period. of time 5 Bassed., aborrt a year, and. I get this letter from the 5 IRS. And basical-Iy it. said. something Like: We were
7 just joshingr, yoll stiLL owe the money, by the way..
8 And, you know hey, you know, just because you got
9 that notice of fed.eraL tax Lien release, p.s., yourre 10 not released. 11 Arrd I was I was I was shocked, to t2 Q. Sir, Irm Looking at your April gth, 2OL2
13 amendment a: your aBp1-ication that starts of f : "Orx, L4 Saturd.ay, March .31, 2OL2, I received a l-et,t,er from 15 ttre IRS notifying me that I owed 88,000 in taxes from L6 L997."
L7 Is that the correspond.ence to which yorr're 18 al].uding? 19 A. Yes, sir. I innrediateIy -discLosed it to 20 the Board,. 2L Q. Did you chalLengle that?
22 A r ctr-cl'. 23 A. How did you challenge it? 24 A. I chaffengrea that by filing there is 25 a I Learned, there is a specific rRS form. I fiLed FRIEDMAN, LOMBARDI & OLSON COURT REPORTERS ls3
1 t.hat form, I rolIed up my sleeves did. some researctr
2 and found. case l-aw that, said that if ttre IRS mislead.s
3 you in writing, you have a rigrht to contest the Lien.
4 r tl.en filed all of ttrat with the Betition, all of
5 t,tre d.ocurnent,s that I had sent in to tl.e IRS and
6 receiwed. from. the IRS and I requested. a due Brocess
7 hearingr.
8 A. I arn now looking, sir, at your amendment 9 d.ated Augrust L4, 20L2, which is aLso Bart of Board. 10 s 13 A. Yes, Mr. Weiss, it is. L4 a. or referring to. 15 Apparently on Augrust the 13th, accord.ing to 15 your amendment, you receiwed. a letter from them L7 saying: rrWe have reduced. it to $27,7O0i " is that 18 accurate? 19 A. It's accurat,e. I have no-. idea how they 20 arriwed at that f igrrre, but I was just grateful. 2L A. What is the status of that, 27,70A tod,ay? 22 A. I fiLed another form with the rRS 23 maintaining my position on t,he abatement issue and. 24 the case Law that r attached to my filingr with ttre 25 fRS and f requested a hearing. FRTEDMAN, LOMBARDI & OLSON COURTREPORTERS L54 1 I received. a Letter from them that f a.m 2 going to receiwe tlrat hearing, it's going to be out 3 of ttre Plantation office in Fort Laud,erdale and st,and, 4 by. And that,s where it is, as I sit here this 5 morning. 5 a. You say it ' s going t,o be out of ttre ,l Pl-antat,ion office? I A. Yes. 9 Q. Ottrer than that, and. ttrat is 527 ,7 00 . 10 A. A Lot of money. 11 Q. But ot'her than that, do yorr lrave any L2 outstand.ing obligations to ttre IRS? 13 A. I d.on'.t L4 Q. ABril .Lhe 15th is this coming Monday. 15 A. It, is. 15 a. I might add., that's the 40th anniversaqir of L7 my first date with my wife. 18 Are you goingr to fiLe your tsax retrrrn on 19 time on April the 15th? 20 A. I arn. f hawe LE, I just received. it ttre 2L ottrer d.ay. I'm going to ctreck the numbers this 22 weekend. after Boca HelBing Hands and. then iL's going: 23 to be deBosited. in the maiJ-box, deLivery confiruration 24 on Mond,ay. 25 Q. Did Mr. HiLL, your CPA wlro testified. by FzuEDMAN I.OMBARDI & OLSON COURTREPORTERS 155 1 deposition, prepare your tax returns? 2 A. He did, sir. He's been my accountant since 3 1,989 4 O. I'm going to move backwards just a tad' from 5 your release from Prison. 6 Year 2000, yotr're incarcerated the entire 7 year, are You not, sir? I A. I am. 9 A. Wtrat was your income for the year 20OO? 10 A. f receiwed, one Eee, it sLemrned' from a 11 client ttrat, I had represented. years before, I beLiewe L2 I had he didn't have any money, I secured the fee 13 by way of a mortgaEle. I think it was a second. L4 mortgrage, actual.ly, on a piece.of property that he L5 owned.. And as Luck wouLd hawe LE, in 2OOO, whiLe I'm 16 incarcerated., he sold. ttre proBerty and. for:urard.ed. a L7 ctreck for $30, 000 to get a satisfaction of t'hat, 18 mortgagre, which I, of course, signed, and' 19 a. rn 2000, was it 30,000 or-- 38,000? 20 A. Oh, because there were two. It was one or 2L ttre ottrer. 22 O. ALL right, sir. 23 In 1999, d.id you have a sim:iLar event? 24 A. I don I t think it was ' 99 . 25 Q. WeLL, let me reBhrase it. FRIEDMAN, LOMBARDI & OLSON c O U RT R EP O RT E R S 155 1 A. Yes. 2 a. whiLe you were in prison, did. you hawe two 3 ewents 4 A. r did. .. 5 Q. -- where you receiwed. checks? 6 A. f did.. One was for 30r0OO and. one was for 7 $38,000, and that was a simiLar situation where I had 8 it, coLLateraLized. in some way. I don't rea1Ly 9 remember the detaiLs, but it a1so was paid- 10 Q. Where that did those checks go? 11 A. St,raight to my wife. L2 Q. And f or wtrat were they used,? 13 A. To support her and. NicoLe. L4 Q. oid yqu have subsLant,ial obligation to your 15 mottrer and. mother-in-Law at the time? L6 A. We d.id we did. Tb.ere was no way I couLd. L7 hawe mad.e it through al1. this without my moth.r "rra 18 my mottrer-in-1aw. My mother's 88 and, my L9 mother-in-Law is 84. 20 Q. Did. you use any of that money to pay t,axes? 2L A. f couLdn't . I just couLd.n, t, . My wife was 22 so backed up on Baying biJ.Ls and, the the 1.igrht 23 bill was day-to-d.ay. Irm incarcerated., I,m not able 24 to earn any income, so the answer is no. 25 Q. Prior to you going to prison for the t,ime FRIEDMAN LOMBARDI & OLSON COURT REPORT R5 Ls7 1 Beriod. from, rougtrl-y, September of 'g4 until you went 2 to prison, f believe it was Augrust of '99. 3 A. It was. 4 a. How did you make a living? 5 A. Worked as a Baral-egaL part of the time. 5 Ttre first part of 1995 before I was ind.icted., I had 7 some legaL fees come in for work d.one. I deBleted my 8 IRA which at one point was about $100,000, f had 9 buiLt it up over rnany years. I depleted ttrat to pay 10 bilIs. I4y beautiful mottrer and my beautiful 11 mother-in-1aw, they the wtrole family pitched in. L2 a. When you were depLet,ing your ItlAs, were 13 there tax pena1ties L4 A. Sure. .Yes, sure. There is a 10-percent 15 penalty on top of the income taxes you have to pay. 15 A. Were yorr timeLy fiLingr your tax returns? L7 A. I was timely fi]-ing my t,ax returns. 18 Q. Were yorr timely paying your taxes? 19 A. I was not. 20 A. You have alLud.ed to working as a Baralegral. 2L Was that d.own in t,he Miami or Fort Lauderd.ale area? 22 A. It was uB in rndiana. 23 . In December of in December of L997, the 24 pressure got so great as a result of the prosBect of 25 going to prison that it was affecting my marriage FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 158 1 seriously and. my wife and. I seBarated,. I packed 2 everyttring T owned and drove up to Liwe with my 3 mottrer who had been a wid.ow since L992 and, mowed. in 4 with her. 5 a. And t,hat town was what, in fnd.iana? 6 A. VaLparaiso, Indiana. 7 Q. All that time I thought he was taLking 8 about Valparaiso, Florida. 9 A. The d.rive is a Little bit longer than that,, 10 Mr. Weiss. 11 O. fn 2OLL, w€ see that, your t,axes were not L2 paid rrntiL ltm sorry your 2010 taxes were not 13 Baid untiL November zOLt, why is that? L4 A. WeL1, .a subst,antiaL amount was paid before 15 that, but tlrere was arr amount that r^ras due and owing L6 when t,he tax return was final.J.y done by Doug. I L7 didn't o 1 what the d.ifference is between the transcript we fuave 2 entered. into evid.ence and the Lranscript ttrat the 3 General Counsel's Office has entered? 4 A. It's the d.aLe of the information contained 5 on the transcriBt. 5 A. ours is 7 A. Is much Later and more recent. I a. A]-]. right, sir. 9 This reflects a payment of $11,963, roughly 10 $12,000 on Nowember. 21st, 2OLL, f.or 2010 taxes. 11 Do you remember paying that? L2 A. I d.o. 13 A. What was ttre corT)us of ttre funds? L4 A. Ttre funds eame 15 Q. Where did the funds come from? 15 A. from the law firm. My saLar:lr stnrcture a'7 with them was a draw with an amount and that's the 18 vralr it's sort of structured. in this business. There 19 was an amount due me at the end of the year, so I 20 went to Brad. and Chuck and. I olained my situation 2L to ttrem. I said: "Is ttrere any way I owe this 22 tax LiabiLity, r have to retire it. Is there any way 23 tlrat you Enrys can not wait t,iLL the end. of the year, 24 can you pay it to me notr^r. " 25 It took ttrem a few days because they FRTEDMAN. LOMBARDI & OLSON cou RTREPORTERS 150 1 they weren't q$rectingr that,,' it took them a few d,ays. 2 But they gave me the money it was owed, to me as 3 saLar-lr, but not, at that point in time, and. so I sent 4 it in to the IRS. 5 Q. We see a $736 payment on December the 5th, 5 ?OLL. What was tl.e reason for that $735 obLigation? 7 A. WeLl, of course the IRS advised. me that the 8 11,000 had. gained. interest since ApriL l5th, and so 9 to send. that in, which I did. 10 Q. f am ].ooking at the first line, it says3 11 "Your t,ax obLigation for 2010 as assessed on L2 Nowember 2Lst., 20Lt was $30,776. 13 The difference between the roughly L2, OOO L4 and. the roughLy .31,000, were those taxes that you had 15 prewious1y paid? L6 A. r d.id.. L7 O. Has it ever been your intent to beat the 18 rRS out of its money? 19 A. Never been my intent, nor-.is nor can 20 tl.at be done, rro. 2L Q. WeL1, that's a good. point. 2 Sir, Irave you ever considered fiLing for 23 bankrrrptcy? 4 A. rdid. rdid,. 25 Q. When, sir? FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 151 L A. r considered filingr for bankruptcy back in 2 , 95 and , g'7 when I began to become ovenrvheLmed. we 3 l-ost our home to foreclosure ttre end. of L997 . There 4 was no way I could. afford, tlrat, I just let the bank 5 hawe it. But I had a I know that, banknrBtcy is an 6 avenue tfuat's avaiLable und.er the Law, I gsd'erstand' 7 aLl that - r just had this hangr-up about just -- not I being resBonsible and. not Baying not paying what 9 yorr owe. And so I had this hope against hope as time 10 went on that things. are going to get better, I'm 11 going to be able to meet al-I these obligations, and. L2 things just, realLy never never d.id. Stet better, and. 13 I never fiLed for bankrrrPtcY. L4 O. Did you find bankruptcy persona].ly 15 reprrgrnant ? 16 A. r did. L7 O. Your home was forecLosed on? 18 A. Yes, sir. 19 o. were yorr timely with your-..Bayments, current 20 with your Bayments on the house until your 2L indictment? 22 A. Yes. 23 Q. Or at leasL until fa].L of '94? 4 A. Ott, yes. 25 Q. f you wouId, sir, tlre house You LOMBARDI & OLSON COURTREPO T RS L52 L If-ve f,-n now. 2 A. WeLLr w€ Liwe in a beautifuL Lit,LLe L,L7 6 3 square-foot, two-bed.room/two-bath home, zero lot 4 Line. It, I s veaar, very smaLL, it ' s just my wife and 5 I , except when our daugrhter comes d,own to see us. I 5', It ' s f ine f or us, we rd reaL consenrative Beople 7 anyway. ft's very smalL, it's very tigrht. Vllhenever I we get coupany over, it, 's quit,e a it 's the air 9 ma.ttresses on the floor and things like that, but 10 we I re fine with it. . We bought it, in December of I 11 don' t remember, ' 03, I think. We're trnd.er:vrater with L2 the mortgrage. It' s okay, I d.on't have of any Blans 13 going anlnuhere arr] of ^tay. L4 a. Are you crrrrent with your payments? 15 A. Oh, sure. L6 a, Did you make a srrbstant,iaL down payment on L7 the house? 18 A. $50,000. 19 Q. Where did ttrose fund,s cone f rom? 20 A. Richard Stephens and, I had hit it off so 2L welL, and. he had. he had been fortunate in doing so 22 welL in his Law practice that he's just a 23 wonderful gruy and he he c€une to me with his wife 24 one day and, said: Don, we want to do something for 25 you. Appreciate your hard work Lrere. V[e want to see FRTEDMAN. LOMBARDI & OLSON c opRTREPoBTER5 153 L you get into a house, get out of the apartment, - 2 I just Looked at him and kind of ].aughed- 3 I said: "Richard., you know that's not realLy 4 possib1e. " 5 He said: "Nope. Linda and. I have decided 5 we are going to give you the fund's for a d.own 7 payrment, if you can get financirg-" 8 And then one thingr Ied to another and' he 9 said: "I wil-L give you $65,000 Lo put down on a 10 horrse. It has to be a conservative home, it has to 11 be something ttrat you can afford- rr L2 And so I ttren tried to get financing. That 13 was very difficuLt, as you carr imagrine, but I was L4 ab].e I paid a.. much higher interest rate ttran was 15 the going rate at the time, but it even though 15 there was a tax Lien against me at that time, IRS tras L7 a has a method that they will subordinate their 18 tax l-ien if it means that you can buy a home, L9 obviously for the reasol that they know their money 20 is g:traranteed.. 2L And so the IRS did. subordinate, and I was 22 abl-e to find financing, and we were able to get into 23 the house, and. I give a].l the credit to Richard 4 SteBtrens and. d.o to this d.aY. 25 a. What kind of car d.oes your wif e d.rive? FRTEDMAN. LOMBARDI & OLSON CO URTBEPORTERS L54 1 A. My wife driwes the 2OO2 Vo1wo S5O that I 2 initial-Iy bought used, for Nicol-e 2OO5. ft has 3 140,000 miLes on it. rt runs just, fine. It hasn|t 4 given me any reason it,'s paid for. She drives it 5 and. we're we're both f ine with d.riwing it. 5 A. When is the l-ast time you and. yorrr wife 7 went orr a vacation? I A. L994. 9 a. Wtren is the Last time you went orr a 10 vacation? 11 A. 1"994 L2 O. And what do yorr d.rive, sir? 13 A. I d.rive a Ford, ExpJ.orer SIIV that Brad, and L4 Chuck and now young Mr. Hirsh here, 15 Mr. Young-partner-in-the-firm, they got tired of me 15 driving rny oLd.er SIIV to the office and, parking it L7 next to their cars, and. so they they mad,e the 18 of f er of Leasing me a new vehicLe. I coul-d.n't L9 beliewe it. And so I goL rid of the ratty old 20 Mariner SIfV and they Leased. me the car. 2L Q. Technically, Mr. Hirsch is your boss, is he 22 not ? z3 A. He is. yes, he is. you d,on't, have to rub 24 that in. 25 a. ALL facetiousness aside, do you have any FRTEDMAN LOMBARDI & OLSON COURTREPORTERS 155 1 probl-em with that? 2 A. I reaLLy don't. He's a wonderful- young 3 Lawyer. 4 O. At one point, and I forget exactLy where it 5 was in one of your amendments, Berlraps it was in your 5 rehab statement, you a}lude to helping Nicole in 7 colLege and. Law schooL. g Have yorr substantialLy contributed. to trer 9 eripenses in colLege and. law sctrooL and' even Bost-law 10 schooL? 11 A. AbsolutelY, sir; YQS , I trave - L2 A. Why? She's grown-up L3 A. WeL1, it's my obLigation as a dad.- When L4 slre was in colleg€r she starts.-- did. two years at 15 FSU and. she did two years at UF - She told me she 15 want,ed. to go to Law schooL, I told trer I wouLd' d'o L7 absoLutel-y ewerything f cou}d. to support }1er, and. I 18 did supBort her and. every sBare dolLar that I had 19 went to NicoLe. And. I don't have to teLl anybody 2A here, ttre room is fuLL of Lawyers, how e:rpensive Law 2L school- is. I be1ieve the tuition itself where stre 22 was at trer first year, and Cardozo was cLose to 23 $45, O0O a year. When you add living e>Ipenses, just 4 basic necessities of Lif e, apartment rentaL, food., 25 boohs I mean, it, ' s it' s owenrheJ-ming - FRTEDMAN, LOMBARDI & OLSON CoP R TREPORTERS L65 1 A. If you trad, to ctroose between the IRS and 2 NicoLe, which way did you go? 3 A. f would go to NicoLe. 4 a. Why is tl.at? 5 A. Because one second.. 5 A. Do you fee1- I.ike you Iet, trer down? 7 A. Yes, f do. 8 a. Ever been your intent,ion not to make it uB 9 to the IRS? 10 A. Newer 11 Q. When you were in prison weLI, first of L2 aLI strike that 13 You aLLud.ed a few minutes ago and your L4 d.aughter did, al.so to probLems between you and. 15 your wife. I bel-iewe you said. you separated.. For 15 how long were you separat,ed.? L7 A. ALmost two years. 18 Q. Wl.en did you reconciLe? 19 A. ilust before I report,ed. into Brison. 20 A. And. how did, she rnake it whiLe you were in 2L prison? 22 A. Her mom and. my rnom. 23 O. Arrd the two l-ump sum paynrents that you got? 24 A. Sure. 25 Q. Wtrat was the f inancial situation like when FzuEDMAN. LOMBARDI & OLSON COURTREPORTE RS L57 1 you got home? 2 A. Disaster d.isaster. We were coLlecting 3 nicke].s and dimes to But gas in the car- It just 4 I mean, we were -- you have no idea what you can d.o 5 if you have to d.o it, so we just we did' it- 6 Q. When did you l-ose Your house? .t A. L997 I A. And when did. you get your new house? 9 A. Decenrber of 2003. 10 A. Where did y'aII l-ive or at Least wtrere did 11 your wife and Nicol-e Liwe during that timeframe? L2 A. In an apartment, in Boca Raton that her 13 mother was paying for. L4 O. Have you Baid. your mother and your 15 mother-in-Iaw back alL of Etre funds? 15 A. No. I paid them back srrbstantial- amounts L7 brrt rro, I've even Lost track of of everything- 18 A. Were they loans or urere they gifts? 19 A. No, theY were gifts, but -=-- 20 a. You f eeL an obligation to return ttre money 2L if you can? 22 A. Absol-utely. 23 Q. Let's tal-k about something that wil-L be 24 BLeasant for a change, Habitat For Humanity. 25 First of aLL, when you were in colL€9€r FRIEDMAN LOMBARDI & OLSON COURT REPORTERS 158 what were some of the part-time jobs tl.at you had.? A. WeL1, I was in col].ege so long dgo, there was no Habitat for Humanity back then. Q. I know, but I 'm 1-ooking otrt. f or things that, earned. morrey. A. Wtren I was in coIlege, f did. two basic things. I worked in a shoe store, it was an aIL-Ladies shoe store, it was a great one of ttre greatest jobs of my life. O. That probabLy d.idn't help you with Habitat for Humanity much? A. No. I worked in the in the srrnunertimes, I would. work rrB in. northwest Ind.iana in at United. States SteaL as a meetranic ' s hel-per. I worked f or the Northern Indiana Prrblic Senrice Comlrany in their constrrrction d,epartment pouring concrete slabs for t,he subst,ations and. attendingr schooL at night,. I did ttrat because my mom and dad reaL1y couldn't afford to pay f or my coLlege educatiort. a. Do y'alL refer to concret,e up there as 'mud" when you're mowing it, around.? A. That's actua].Ly what they d.o ref er to it, Ers, rrmud.. rr Q. Yes, r worked. for a concrete company FRTEDMAN, LOMBARDI & OLSON COURTREPORTERS 159 L A. Okay. 2 Q. I was just, wond.ering if t'hey did it uB in 3 Yankee Land l-ike we do it d.own trere - 4 So Habitat for Hrrmanity, when did you start 5 going to work for Habitat for Humanity? 5 A. When I got home on SeBtember 21st, olle of 7 ttre first things I d.id. was Bul1- tfue Bar ruLe that I giave me marching ord.ers of wtrat I need.ed. to d.o. Ald 9 I used that as my bibl-e, so to speak, on what I 10 need.ed. to do conununity senrice was a very big part' 11 of that. So I knew I just had. so many I was t2 putting in so ilErry horrrs at the office, I knew tfuat 13 only had X nurnber of hours on the weekends to But to L4 community service, so it couLd.rr't, be sometfuing it 15 had. t,o be somethingr rigorous. And Habitat for 15 Humanity was aLways sayingr that they need'ed' treLpers, L7 so within a coupLe of weeks aft,er returning home, I 18 just went, to a Habitat for Humanity South Palm Beacfu L9 County site and. introduced. myseLf and said I would 20 like Lo voLqnt,eer. Of course, ttrey're aLways wiLLing 2A to lrave volrrnteers, and I did have some erq>erience in 22 the const,ruction business. So I just began showingr 23 up on either a Saturd.ay or a Sunday for any four to 24 six horrrs and that continued. for f ive years - 25 Q. We have a let,ter in the material, I t'hink FRIEDMAN LOMBARDI & OLSON cou TREPORTERS L70 1 it was att,ached. to your rehab statement, from a ,fohn 2 She11ey. 3 Wtro is Mr. SheJ.ley? 4 A. iloh:o ShelJ-ey is one of the d.irectors of the 5 South PaLm Beach County Chapter. He's a coup1e of 6 years oLd.er ttran me. He's a retired. fBM executiwe 7 8 Habitat for HrrmaniLy. And. he was the gentleman that, 9 orgranized team Leaders to take care of the voLunteers 10 ttrat would. show up .on Saturday and, Sunday. 11 Q. Did you disclose to Mr. ShelJ.ey or anybody L2 e1se at HabiLat for Hrrmanity earLy on that you were a 13 convicted. felon? L4 A. I didn.'t. Wtren f --: 15 A. Did there ever come a point in time when 15 you reLated. to anybody at Habitat for Humanity what L7 your backgrround. was? 18 A. No. L9 Q. Didnrt you think that was important for 20 them to know? 2L A. I did, but, trere's wtrat hapBened.. 22 Wtren I came home and when I st,arted. for 23 Ilabitat, for Humanity, I canrt tell you how ashamed. 24 and embarrassed. I was. And. so when I showed up on 25 the work sites, I was wilLing t,o work hard and FzuEDMAN LOMBARDI & OLSON COURT REPORTERS L7L 1 ,Iotr:e Shelley and f just immediatel-y hit it of,f , he 2 impediatel-y trusted. me. And within months, he was 3 puttinel me in charge of like Office Depot 4 volunteers woul-d. strow up or fBM, various 5 corBorations, Law firms, what have you these 6 voLunt,eers. He was putting me in charge .of them and 7 lre was trrrsting me more and. more, as time went on- I He was send.ingr me to Home Depot to buy supplies. It 9 just became an increasing trust, and it just became 10 increasingLy more difficuLt for me to sit him down. 11 There was anottrer gent1.eman by the name of L2 Paul- .Tohnson, aborrt tlre sErme &g€r retired Nanry, and. 13 he also trnrst,ed me a gireat d.eaI, and. I just I keBt L4 saying to myseLf: "This week I'm going to buy these 15 Sruys ].unch and. I'm going to teLL them.tr I just 15 never I just I just, was too embarrassed.. They L7 just had put too much trust in me. 18 Then iU got to the point where ilohn cal-Led 19 me and he asked. me if I wouLd. join -the board. of 20 d.irectors for Habitat, for Humanity. just there 2L was no walr at that Boint that I couId. say anything to 22 him, and. so I t,o1d. him that my time schedule couLdn' t 23 pernrit, it, but that I wouLd. consid.er that next year. 24 And it was just -- it was just awfuI. I just 25 couLdrr't I and I never d,id. FRIEDMAN, LOMBARDI & OLSON C O U R T B E P.O B T E R S L72 1 And. so f ive years r Ets a d.edicated EIUyr r 2 went ttrere and did some of the most grruelingr 3 things shingling a roof in Augrust, digrging sewer 4 5 just never brought myself around, to teLling ilohn 6 SheJ-Iey. 7 A. How many hours d.o you think you But in 8 working for Habitat for Humanity? 9 A. WeLl, f kept a carefuL logr. Again, I had 10 decided that f was going to embark on this mission t'o 11 Brove my rehabilit,ation. And. I went througtr it Last L2 week and I went througtr the various entries, and 13 can actuaJ.Ly as I went, through each entry, I could. L4 actuaLl-y enwisio.n what happened that' day. And I 15 added it up to about about 650 hours with Habitat L5 for Humanity. L7 A. All right 18 A. Because they didrr't, have work sessions orr, 19 l-ike, Mother's. Day weekend. or -- so. ttrere were 20 hoLid.ay weekends they d.id.rr't, and. then hurricane 2L seasons, they wouLd, cancel. 22 Q. Sir, you hawe attached Logrs of Habitat for 23 Humanity work to your or you attached. iL t,o your 24 retrab stat,ement. 25 Is that the 1og that you went through in FRIEDMAN LOMBARDI & OLSON COURTREPOBTERS L73 L determining your hours? 2 A. It is, Mr. Weiss, Yes- 3 A. Now I'm going to d.igress just a tad'- 4 Mr. Stephens knew of your background. before 5 you went to work for him; correct? 6 A. Sure. 7 A. Did Mr. Sonn or Mr. Erez know of your I background. before you went to work for them? 9 A. Every d.etaiI. 10 Q. How did theY know? 11 A. I tol-d them. L2 a. Before you went, to work for ttrem? 13 A. Yes, and. they sBoke to Mr- Stephens- L4 a. ObwiousLy, Brad, knew before frou went to 15 work for him? 15 A. Yes. L7 A. He had. been wittr SteBhens? 18 A. Yes. 19 A. And to cont,inrre my digression, do you have 20 reason to be].iewe that Mr. St'ephens did a due 2L d.iLigence on you before he hired you? 2 A. Knowing Mr. SteBhens, I know he did a due 23 diLigrence on me, he to1d. me. 4 O. He has alluded. to that in one of his 25 l-etters to the Board.. FRTEDMAN, LOMBARDI & OLSON coURr REPORTERS L'|4 ' 1 Do you know of alxy J.awyers do you 2 personal.ly know of arty Lawyers that he spoke to about 3 your case? 4 A. I do. IIe contacted. an attorney by the name 5 of David. Bogenschutz in Fort Laud,erdaf-e. f knew 5 David over the years, he was a he's a marrrelous 7 crinrinaL d.efense ]-awyer, probably top five in South 8 Florida. David and. I had. crossed patlrs over the 9 years. IlIe never tried. a case togettrer or anything, 10 but we always were speakingr with one other. I knew 11 of his career weIL, and, he knew of ryr career very L2 wel-l-. Wel]., I did not, know that, Richard Stephens 13 knew Dawid. But after I spoke to Richard, he L4 contacted Dawid Bogenschutz, aed Bogensctrutz fiLLed 15 him in with alL the detaiLs. Richard. asked him if he L6 should hire me. L7 David. said: "Hire him on the spot." 18 Q. How did you Learn of this? L9 A. Richard told me ].ater 20 A. Now, back t,o cormnunity senrice. 1 Why did you quit, workingr for Habitat, for 2 Humanity? 3 A. We1l, f had serrred. my five years of 4 probation and. superrrised release, and. I inunediately 25 applied to have viL rights restored,. I had. no FRTED LOMBARDI & OLSON COURT EPORT RS L75 L idea trow Long that was going to' take - I had not 2 studied for the FLorida Bar exErm before that. I knew 3 that was going to be a monumentaL und'ertahing, 4 because I was, by that point in time, out of Law 5 sctrooL 33 years. The thought of the ruLe against 6 perpetuities was going ttrrougrh my mind' and ttrings 7 l-ike ttrat. So I imrnersed myself in studying fo= the 8 Bar. I didn't, have a lot of time, again- Richard''s 9 Law Bractice in 2OO5 had kind. of come d'own to a 10 cIose. I started with Sonn & Etez, they were verlf 11 demanding on time, as well- L2 13 weekLy basis with Sorrrr & E,rez? L4 A. Werg tal.king minimum. -- minimum minimum, 15 50 to 55 hours a week, not incl-uding 16 Q. What are You workingr right now? L7 A. Oh 18 Q. Fifty to fifty-five trours? L9 A. Yes, about the s€rme . May.be more - 20 Q. There came a point in time when you 23- wol-rrnteered for Boca HeJ-Bing Hand.s, did you not? 22 A. Yes. 23 a. Wtlen was t,hat? 24 A. Went to Boca HeLping Hand.s in ilanuanr or 25 Febnrary of ?OLL to an orientation, I asked them if I FzuEDMAN, LOMBARDI & OLSON cou RTREPORTERS L76 L coul-d be a voLurrtary in the kitchen. I had a 2 reLationship with Boca HeJ.ping Hand.s over the years 3 because I trad been raising money for turkey donations 4 at Thanksgiwing, so they knew wtro I *l=. ToLd them I 5 wanted. to voLunteer, r sat througtr t,tre orientation 6 given by a Doc Schwartz he's actuaLly a retired. 't d.octor of psyctrologJf . I a- Is ttrat ttre same SoLomon Schwartz tlrat we 9 have a Letter from attached. as our Er L4 background., eittrer inuned.iateLy after the orientation 15 or shortLy'thereafter? 15 A. Abso].uteLy. I wasn't going to Let, what L7 happened at Habitat for Humanity happen ltere, so I 18 to].d him directLy what the conwictions were for and 19 ttrat f I wanted to be a vo].unteer. 20 Arrd he respond.ed: "Don, I'm fine with all 2L of thatr ?s Longr as you're a hard worker-" 22 Q. Sir, other than the criminal charges that 23 we've discussed, tod.ay, Irave you ever been charged 24 wiuh any other criminal offenses? 25 A Ivlany, many , many years ag[o. I think a FRTEDMAN LOMBARDI & OLSON C o U R T REPORTERs L77 1 friend. and I were target shooting with a .22 and we 2 got ctrarged. witfu a a misd.emeanor, I don't really 3 even remember. 4 A. BasicalJ-y, unauthorized. use. of guns; right? 5 A. Is that what -: I d.on't recaLl, okay. I 6 Baid a hundred dolLar fine - 7 A. Certainly wouLdrr't lrave had a probLem witlr I that in Florida or Texas, I'm sure- 9 Sir, have you ever been accused' of Iying, 10 clreatingr or stealingr, other than wtrat, haBBened with 11 the UniLed States government? L2 A. No. 13 Q. Let's go back to Habitat for HumaniLy- L4 You taLked. about raising fund.s for t'urkeys 15 or buying turkeys, that was for their Thanksgivings? 15 A. It, was . L7 It was always 18 Q. And we're going to cut this real short- L9 A. Got You, 9ot Yolt. 20 a. StiLL doing that? 2t stiLL doins it,? 22 A. StilL doing Lhatr YBS- ' 23 A. How many turkeys did you get l-ast year? 24 A. I t,hink we'we got somettring Like 225 or 23O 25 Bound.s of turkeys for FRIEDMAN. LOMBARDI & OLSON co URTREPORTERS L78 1 Q. tet ' s gro back to Doc Schwartz. 2 We trave testimony here from we hawe 3 deBosition testimony from Bozena SzaLobryt, did. she 4 vet you for working at, Boca HeJ.ping Hand,s? 5 A. She wasnrt in charge of vol-unteer 5 management at that time. That was soJ-e1y within Doc 7 Sctrwartz' dut,ies. I rrever even spoke to Bozena. I "Bozena" is how she pronounces it. I never even 9 sBoke to her for seweraL months, even after 10 wolunteering. And. she did not cond,uct ttre 11 orient,ations and. she did not decide who was groing to L2 volunteer. 13 a. Did you feeL your d.iscLosure to Doc L4 Schwartz was suf.ficient? 15 A. Sure. I feIt, Like f had discLosed. it to 15 the individuaL that I need.ed. to disclose it t,o. He L7 had been there for a number of years and. he was in 18 ctrarge of voLunteer coord.inat,ion; yes, sir. 19 a. Arrd just verlf briefly: What was your 20 normaL work routine.for Habitat for Humanitya 2L A. ft varied. vetny much, but it, was normalJ.y a 22 four- to five-trour annount of time, eit,trer on a 23 Saturday afternoon or a Sunday aft,ernoon. I 24 gravitated to a Sunday afternoon, it, fit in with my 25 schedule, I couLd work on a Saturd.ay or infrequentLy FzuEDMAN LOMBARDI & OLSON COURTREPORTERS L79 1 gro fishing on a Saturd.ay, go to church on Sunday and. 2 gro to Habitat SundaY afternoon. 3 Q. Same question forBoca Helping Hand.s with 4 the kit,cfuen work, what's your normaL working routine 5 there? 5 A. Boca Helping Hands worked out perfect. We 7 begin at eight and. we nonstop until we ":*. I stop serrring at 12:30 /L2:45, and then the cleanup is 9 sqlcstantiaL after that, it's you get out of there 10 anytime between Nico1-e is accurate, anytime 11 between 1:15 and. Lz45 . L2 A. And what daY of tl.e week is that? 13 A. Saturday morning- L4 O. The computer record.s that Ms- SzaLobryt, 15 attached to her deposition have been srrBpl-emented. 15 or I'm sorry. L7 You've worked. since ttren, trave you not? 18 A. YES. 19 Q. How manY hours hawe You Put in? 20 A. I've put in exactLy 444 hours at Boca 2L HeLping Hand.s. 22 Q. A1L right, sir. 23 Sir, wtrat is ttre Christian AssembJ-y Church? 24 A. The Christian Assembly Church is a ctrirrch 25 up in Indiana that I was basicaL Ly raised. in from FRTEDMAN, LOMBABDI &, OLSON CO U RT REPORTERS r.80 1 birth. 2 Q. Hobart, Indiana? 3 A- Yes. 4 o. How often d.o you gro to ser:rrices there? 5 A. Ewery Lime I t m in Ind.iana . 5 o. Arrd how often is that, sir? 7 A. Three or four t,imes a year. I a. Do you financiall-y supBort ttrat ctrurch? 9 A. I do. 10 A. why? 11 A. f do because the pastor of that church for L2 many decad.es was my uncJ-e, my uncle Mike. My mother 13 pJ-ays the viol-in in that churcl. to this day. My L4 90-year-oLd aunt.BLays the piano in ttrat, ctrurctr to 15 t,his day. I was raised, in that churctr. My Bast,or 15 uncle Bassed. away a couple years eigo, his son is now L7 tlre pas.tor. And before my uncLe d.ied., tre asked. me if 18 f couLd. at a].L continue to support the church, and I 19 promised him that f wouLd.. -- 20 A. Is it a smaLJ- ctrurch? 2L A. It is. f t I s a very smaLL churctr. The 22 congregrat,ion probabLy isn't more tlran fifty. Artd. f 23 do and, Irm trappy to do it. 24 O. Approximately how much d,o you give t,o them? 25 I suspect it fluctuat, €s, but give us a range. FzuEDMAN LOMBARDI & OLSON COURT REPOR ERS 181 1 A It d.oes . It f ltrctuates on my income. But 2 I beliewe Last year I gave to that ctrurch you trave 3 the docrrments $L4,000 . 4 O. Are you active in your own ctru'rch? 5 A. f Eun. 5 A. Are you active in ttre sense of doing more 7 tlran just going to church? 8 A. Go to church. We go to prayer meetings on 9 occasion. I meet with other friend.s that attend. the 10 clrurch. IaIe sort of. trave a Litt]-e ritual , 9o to 11 churctr I go to breakfast Sunday morning and' go to L2 church. The church puts on various event,s now and. 13 then, you know, I attend. the ewents. L4 a. And then Iast, teLL us about your blood 15 work. L5 A. My bLood work. That was al.so L7 a. That's not 1asL, by the way, but gro ahead.. 18 A. Okay, my bLood. work. That was aLso 19 something r decided to do as part of my job to prove 20 rehabiLitation. It just was something I decided I 2L couLd easily do. I was healthy, there's no reason I 22 couLdn't, give bIood.. There is always a shortage of 23 bLood in every comnrunity, and. so I just simpl-y 4 started giving bLood. IL takes an hour, it's a 25 pinprick, and there i s onlv one place that the blood FzuEDMAN t LOMBARDI & OLSON COURTREPORTERS L82 1 banks can get blood and t,hat 's from hurnan beings. So 2 I started, doing that and. I did it on a vertr regrular 3 basis. 4 Ttren in 2000 I d.on.t remember 2005, I 5 was diagnosed with an issue that required me to take 6 a med.icat,ion that they would not permit me to give 7 bIood.. That, was for five years, I had a procedure I d.one, so thatis cured,. And I inunediateLy started, 9 giving blood agrain. I think f 've given 18 pints. 10 Q. You say 18? 11 A. f think 18 or L9. L2 A. Okay. 13 A. IL wouLd. be doubl-e that, but L4 O. Fina1ly, what is Compassion International 15 and. who is ilose de arito? 15 A. Compassion International is an organization L7 that Boo1s monies from d,onors to suBport extremely 18 und.er.privileged. children ttrroughout the worLd., I 19 ttrrougrhout Af rica, throughout Soutlr. America. It s a . 20 faith-based. organization. The contribution, is 2L reaJ-J-y rather minimaL , of $38 a month. It I s a 22 wond.erfuL organization. A hundred percent of Lhe 23 money €foes to tl.e families of the chiLd. He is my 24 desigmated chiId. f not only d.onat,e the money, I 25 donate birthday money, Christmas money. He writes me FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 183 1 back littLe Letters in Portugruese, they interpret it. 2 And. Ehe $38 a month, aLthough it isn't a whole heck 3 of a Lot of moxtey to us, L|-'s a }ot of money to tfuat 4 famiLy. So I'we been doing that since eittrer iluly or 5 Augrust of 2OO7 . 6 A. Do you hawe any idea trow oLd' ilose is now? '1 A. I think lte's tre sends me Bhotographs of I trimseLf . He ' s growing pretty quickLy. I think he ' s 9 somettring like nine. 10 a. We have a. Letter from a Mr. Frakt whorwas a 11 Professional ResponsibiLity Brofessor at Barry' Law L2 schooL 13 How did you come to sBeak to his PR cLass? L4 A. In ,JuJ-y of ?ALL, T again was thinkingr how I 15 coul-d. best do somethingr to show my r knew I wouLd' 16 be sitting trere one of tlrese days, to be just real L7 honest, wiuh your so r wanted to do what I needed to 18 do, period.. So it d.awned. on me Ehat i had aLI of 19 this e>rperience and. I had crossed the line etlricaLJ-y 20 and maybe I couLd just share this wiLh a Law schooL L cLass. Maybe just maybe some professor is 22 interested. in presenting me as a Eruy that, hit the toB 3 and then hit the very bottom; and, t,o maybe Iet his 4 students -- his or trer students hear it from ttre 25 horse's mouth. And maybe it would be a deterrent- FRIEDMAN. LOMBARDI & OLSON cou RTREPORTERS 184 L So I sent out, e-mails to everlr Professional 2 ResBonsitriLity professor in 1aw schooLs in the State 3 of Florida. f received two responses, one not 4 exactLy an open-arllts response, but --. Barry Frakt is 5 a Harvard-educated professor at BarrT University t aw 6 School- he's not rrour, he was then. He taught a ,1 ProfessionaL Responsibility cLass. The e-mail- I sent 8 out o 9 ind.ictments, my convictions, the time I, served., 10 eweryttring. 11 Q. Did he invit,e you up to speak in his cLass? L2 A. He did,. He did. 13 Q. Did you sBeak? L4 A. I d.id. Augrust 23rd,. 15 Q. How was it received.? 16 A. What did. you say? L7 A. How was it received.? 18 A. ft was received. very weII. I took Nicole 19 uB with me. I apBeared before l.is Ethics cLass. 20 Ttrere were a good. 50 or 50 stud.ents. I stood. before 2L ttrem not easy, may I add but f stood. before 22 ttrem for about 45 minut,es. I then tre asked. me if 23 I was wilLing to take questions, I did. As you can 24 imagine, whiJ-e I was telLing my story, what I went 25 ttrrough, the eyes on these stud.ents were about that FRTEDMAN, LOMBARDI & OLSON COURTREPORTERS 185 1 big (indicatingr). I answered their questions and' 2 it actualLy turned' out very well ' 3 Q.Byttreway,whatwasthefirstquestionyou 4 were asked.? 5 A. When he asked' if any stud'ents had any 6 questions, virtual-Ly three-fourths of the class 7 raised their lrands, and there was a young nan sitting I in the f ront and. Prof essor Frakt cal-l-ed. on ttrat one ' 9 He said: Mr' Fergrusorr' r have two 10 questions. "First of a1-1, can I xnarry your t_1 daugl.ter? " L2 O. Did You answer it or did You just 13 A. I d.id ansv,rer it'- I said.3 "You're goingr to L4 trawe to ask her ttrat Yourself . ': 15 A. Sir, yorr're f amiliar, in general terms, 15 with the requirements of rehabilitation, ?S set forth L7 in RuLe 3-13 in ttre lrLes reLating to ttre admission 18 to the Bar, are You not? 19 O. I Errn, sir- 20 Q. You ad.dressed. them in your retrab statement, 1 did you not, sir- 2 A. Yes, sir. 3 Q. I'm going to nrn d.own them rather quickLy, 4 sir. 25 ance with the titlLes. " Were MBARDI & OLSON coU Rr REPORTERs 185 1 you ever charged in any wiolation of Brobation or 2 super:rrised. release? 3 A. Never. 4 A. We have a Letter in our packagre f rom in 5 your rehab package from a Ms. GutheiL. 5 Am I Bronouncing that right? 7 A. Marisa Guthei]-. I a. Was she one of your probation officers? 9 A. She was. 10 A . Al-l- right, sir . That r^ras a letter to 11 Mr. Stephens. L2 Did she ever in any way criticize your 13 write you uB or reprimand. you, eittrer formally or L4 informa.I1y, for not complying with your probation? 15 A. Not at alL. 15 a. Have you ever been accused. of unLicensed. L7 practice of law? 18 A. Never. 19 Q. What is RuIe 3-.5.1 of the-.nrLes regnrlat,ing 20 t,he Florida Bar, sir? 2L A. That requires me to fiLe quarterl.y 22 affidavit,s with the Florida Bar attesting Eo the fact 23 that a ntrmber of things: I have trad no cLient 24 contact, I haven' t, handled. trust fund.s., abiding by 25 tlre nrLes, etcetera . FRIEDMAN LOMBARDI & OLSON CO.URTREPORTERS 187 1 O. Have yorr filed those quarter]-y reports 2 since you stsarted. working for Mr- Steptrens? 3 A. Yes. 4 O. Are the lawyers required --- 5 A. Lawyers are required', as weL]-- He filed 6 them, fiLed them with sonn & E.tez, presentLy fiLingr 7 them. I A - Ewer been accrrsed of wiolatingr ttrat rule? 9 A. No. 10 a. Wtro is Ms. Genco? 11 A. GeraLd.ine Genco is the former mayor of L2 Tequesta that is an e> 13 regruLation area. Very experienced lady, an er L4 regrul-atory matters on both FINRA and' the SEC - 15 Q. We have a letter from her actuaLly, we 15 have Letters from her in the material. One of ttre L7 eLements and. I don't think we need to be].abor 18 this, but you hawe to attest to it- 19 Do you hol-d any maLice or- iL]. wiLL towards 20 ttre U.S. Attorney's Office or the Florida Bar? 2L A. I realLy d.on' t . I 'm sitting here because 22 of rtrer nobody e]-se. 23 Q. ALL right, sir. 24 Sir, r submit this is the centraL issue 25 before us tod.ay. How can you convince the Supreme FRTEDMAN, LOMBARDI & OLSON CO URTREPORTERS 188 1 court of Florida, througrh it,s representatives here 2 today, ttrat, what you went, througrtr in 1993 wi].L not, be 3 repeated. Iror Let's rephrase it the conduct that 4 you del-iberateLy engaged. in in 1993 wtrich resuLted. in 5 your two felony conwictions that Led t,o imprisonment 6 wi1-L not be repeated.? 7 A. Lady and gentlemen, Irm a different person, I as r sit here. r 've looked back on wl.at il ve d.one a 9 milLion times, and. r decided. ttrat the only vray ttrat r 10 could, Brove that r I m wortlry to be welcomed back to 11 the priwiLege of practicing law is to prove myself, L2 since ilwe returned home september of zooL and. that rm 13 f a ma.n of charact,er, integrity, honesty; and, L4 eweryttring I've.done virtualJ-y ewerything f ,ve 15 d,one orf,. the business LeveL, personal lever, d,eaLingr 15 with my neighJrors, deaLing with ttre individual at L7 PubLix everyt,hing I 'we d,one is to prove that f 18 have that, charact,er that f once had and t,hat, moral L9 fiber that, I once had, worthy of bei:rg a Licensed. 20 Lawyer in the Stat,e. of FLorida, and I 'we worked. verlf 2L hard for the last LZ years 22 Q. Was greed. a factor in your d.ecisions? 23 A. I think it was, sureo . 24 Q. How do we know you're not going to get 25 greedy again? FRIED LOMBARDI & OLSON COURTREPORTERs 189 1 A. NO. 2 O. Is your LifestyLe d.ifferent? 3 A. Oh sure, sure. LifestyJ.e is and you 4 know, I'm just fine with our lit,tLe conservative 5 5 Ltran I was before when I was in the fast Lane as a 7 criminal lawyer, which is how r reaLLy trave t,o I describe Lt, it's kind. of how it was. r don't miss 9 that limeligrht . I don' t miss thaL business at all . 10 f 'm 56. If I'm ever.wel-comed back or inviued back 11 I d.on't know how many years I have left, to pract,ice L2 ]-aw, I hope a lot, but this is it's just a 13 dif f erent gruy. L4 MR. I,IIEISS : I lrave no other questions, 15 ma.'am. L6 MS. DAVIS: Ms. Smith, how long do you L7 estimate ttrat your questions wil1. take? 18 MS . SMITH: We strould probabLy take a Lunch 19 break. 20 MS. DAVIS: We're going to take a lunch 2L break for an hour. 22 (Lunctreon recess sras taken from L2235 p.m. 23 to 1:38 B.m., after which ttre foLlowing Broceed,ings 24 urere had: ) 25 ( Proceed.ings continued. in VoLrrme II ) FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 190 FORMAL IIEARING \rOLT'ME II Eonro,ruAl E.TORTDA BOARD OI' BAR EXAIUINERS RE: APPLICATION OF DONALD L. FERGUSON Transcript of confidential proceedings had and. testimony taken at the formal trearing before ttre Fl.orida Board of Bar. Exa.miners rrnder Rule 3-20, Ru1es of ttre SuBreure Court Relating the Adnrissions to the Bar. IVIEMBERS OT THE BOARD: Va].erie J. Davis (Presiding Officer) Ronald R. Austin Mark n. F'ried Noel G. Lawrence (enreritus Melnber) Kenneth D. Pratt OFE'ICE OF THE GENERAL COt NSE[, s - Kerra A. Smith APPE,ARANCES: ilohn A. Weiss, Esq . ALSO PRESEMT: iloeL RosentlraL, Esq. Scott Hirsch, Esq. FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 1_91- 1 PI,ACE: 2 Coral Gables Hyatt 3 50 Alhambra Plaza 4 Coral Gables, Florida 33134 5 Cadiz Board,room 6 7 DATE AIVD TIME: 8 April L2, 2OL3 9 8:00 a.m. 10 EXTITBITS: 11 Board. gxhibits 1-5 Page: 5 L2 Of f ice of General CounseJ. E: L3 ABBlicant' s E> L4 15 WTTNESSES: 15 Brad.ford Gucciardo L7 (By Ur. Weiss) Direct Pagre: 15 18 (By Ms. Srruith) Cross Page: 41 19 Ray Mineau 20 (By Mr. Weiss) Direct Page: 54 2L (By f,fs. Srniith) Cross Page: 58 22 NicoLe Dawn Fergruson 23 (By Mr. $Ieiss) Oirect Page: 70 24 (By Ms. Snith) Cross Page z 92 25 FRTEDMAN LOMBARDI & OLSON COURTREPORTERS 192 1 Donald Lee Fergruson 2 (By Mr. gteiss ) Direct Page.. 92 3 (Brr Ms. smith) Cross Page: 193 4 (Brr Ms. Smith) Furtlrer Cross Page: 235 5 (By tvlr. Weiss ) Red.irect Page: 247 6 7 This transcript is confidential and may not be 8 pr:Jrlished or released except as provid.ed. und.er 9 Rrrl-e 1-50 or otherwise authorized by the Supreme 10 Corrrt of Florida. 11 L2 13 L4 15 16 7_7 18 19 20 2L 22 23 24 25 FzuEDMAN. LOMBARDI & OLSON (OURTREPORTERS 1_93 1 (Proceed.ings continued. from Volume f ) 2 MS. DAVfS: We're back on the record. 3 Ms. smith. 4 MS . SMITH: Ttrank you. 5 Good af ternoon, Mr. E'ergruson. 5 THE WITI{IESS: Good aflernoon. 7 MS- SMITH: I'm trying to go in order 8 of the specifications. 9 THE VIITNESS: Could. you please keep your 10 woice up a littIe bit. 11 CROSS-EXAMINATION L2 BY MS. SMITH: 1_3 A. With respect to Specification 1(A) which L4 concerns the crim:ina1 activity you were invoLwed. in, 1-5 you admitted that you notarized. the affidawits ttrat 16 you knew to be false L7 Did you a1-so know what Mr. abbelL and 18 Mr. Lagruna were p1anning to d.o with t,he affidavitsa 19 A. I wasn,t entirely clear at that moment. 20 Brrt af Lermrards, I learned that. they were going to use 2L them in CoLombia, initially, to figrht arry Bossible 22 extradition of Migruel Rod.rigruez to the Unit,ed States, 23 yes. 24 a. At the t,ime that you signed, them, d.idn't 25 vou ='='"?'zu'#fuh1$L6fiffiAffii ttr36N* in court ? COURTREPORTERS L94 1 A. Yes. Yes, ma.'am; I did. 2 A. Do you know if ttrey did? 3 A. I don't. I d.o not know- 4 a. Now, your superseding ind.ictnent which is 5 Office of General Counsel Exhibit 2 at Bates Number 5 6, iU a1so indicates ttrat on 7 IvIR.. I^IEISS: Let me interruPt you, I Ms. Smith. 9 I'm going tro hand the General Counsel's 10 e: L2 MS. DAVIS: Can you giwe ttre is it 13 office of General Counse]- L4 MS. SMrTH: Exhibit 2 at Page 5. 15 MS. DAVIS: Thank you. 15 BY MS. SMITH: L7 A. And. ther.e at Paragraph L4 , it talks about 18 trow on March 28th, Lgg4., Mr. Pedro Isern to]-d you L9 that he wanted to cooperate with the government. 20 Then in ParagraBh 15, it ind.icates that you LoLd him 2L that we1l, 15 and. 15 indicate you that basica].ly 22 discouraged him from cooBerating with the gowerrunent, 23 indicating that it was sending the wrong message to 24 Mr. Orejuela. 25 A. Sure. FRIEDMAN, LOMBARDI & OLSON COURT REPORTERS 195 1 A. Do you recaI1 goingr to see Mr. Isern? 2 A. Sure, f do. 3 a. Was he your cLient? 4 A Not at that point, 'he wasnrt. : a. He was a prospectiwe c1-ient,? 5 A. Yes, ma'am. 7 O. And did he, in fact, ind.icate to you ttrat 8 l.e wanted. to cooperate with the gowernment? 9 A. Yes. But he said it a 1ot d.ifferent 10 than than the way the government' has it here. 11 What, he said vras: "I want to cooperate L2 with ttre growernment to get a possibJ.e sentence 13 reduced.; but f wi1.1- in no way I want t'o d.o it so I L4 can leawe Migruel- . Rod.rigruez out. And if , r have to lie L5 to do that, f wiLL - - t' or in so nany word.s, I 'm L6 paraptrrasing, it's a Long time ago which caused L7 quite an argrument between he and, I. 18 a. Did you adwise trim tl.at his cooBerating 19 with the government wouldn't look right to 20 Mr. Orejue3.a? 2L A. I didn' t reaJ-Iy use tlr.ose words . It ' s been 22 so Longr, but f 'm goingr to give you my best 23 recolLection. It wouLd. be: "Cooperation with the 24 gowernrnent necessariJ.y means that, you're cooperating 25 wit,h a thousand. percent of your knowled.ge" is FRIEDMAN LOMBARDI & OLSON CO.URT REPORTERS 1_9 5 1 basica].].y what I said. And when you cooperate with 2 ttre government, it's impossib].e to keep it secreted., 3 BeoBle know. And then we got into a ]-engthy argrument 4 about lying and about getting his sentence reduced.. 5 a. Were you encouraged by Mr. Lagruna or 5 Mr - Abbe]-]- to d.iscourage Mr. Isern f rom testifyingr? 7 A. No. 8 O. And. were you d.iscouraging Mr. Isern from 9 testifying in order to benefit Mr. Orejuela or 10 Mr. Lagruna or anyone else? 11 A. Not reaIIy. L2 a. What was t}.e purpose of your 13 d.i scouragement ? L4 A. Purpos.e of my d.iscouragement? 15 O. Why did you think it' was not to his 15 ad.wantage to eooperate? L7 A. Because he wanted to cooBerate and J.ie at 18 the s€rme time. L9 A. I see. 20 A. That's what he wanted to d.o, ma'am- 2L O. So your issue was not with him cooBerating, 22 you just didn't want to prof f er his false test,imony? 23 A. Correct 2 4 O. Now, 1(B) t,alks about your plea to the I 25 conspiracy chargre. FRIEDMAN LOMBARDI & OLSON COURTREPORTERS L97 L A. Yes, ma I am. 2 MS. DAVIS: Ttris is Specif ication 1(g) Z 3 MS. SMITH: 1 (B) . 4 MS . DAVIS : Thank yotl. 5 BY MS. SMITH: 6 A. You indicated that in this instance you did 7 not bel.iewe ttrat you had. done anyttring wrongr; right? I A. That's correct. 9 O. Becarrse you put where the f ees were coming 10 from on the Formr 8300, ttre IRS fornr? 11 A. Yes, [ta'arn. L2 a. You al.so indicated that you had everlr 13 reason to beJ.ieve that the fees that you were getting L4 were coming from..Mr. Magluta; eorrect? 15 A- MagJ-uta? 15 a. Yes. L7 A. Yes. 18 a. Howewer yorr Bronourace it,. Irm probabJ.y not L9 pronouncing it 20 A. No, you're fine, Magrluta 2L Q. Brrt you had every reason to beLiewe t}.at? 22 A. r did.. 23 a. Is there a reason why, then, you would. But 24 Mr. Hernandez' rrErme on the fonr if you had every 25 reason to beJ.ieve they were reaLLy coming from ttre FRTEDMAN LOMBARDI & OLSON CO.URTREPORTER5 L98 1 drugr proceeds of Mr. Mag1uta? 2 A. Yorr hawe to look at the Form 8300, it 3 specif ica].ly asks you wlro trand.ed' you ttre fees - 4 A. So it's not geared. towards the source of 5 the fund.s are 6 A- It doesn't ask You that. 7 O. OkaY I A. They want to know who wa1-ked' in your office 9 and gave you the cash. 10 O. But then ttre U. S . Attorney' s Of f ice charged 11 yort with fa1-seJ-y putting Mr- Hernandez' narne on the L2 f orm? 13 A. No, ma ' am; that ' s not wtrat they charged' me L4 for. 15 A. OkaY 15 A- They ctrarged me with receipts of proceeds L7 connected with 18 a. tet me refer you to Office of General- 19 Counsel E>rhibit 5, whictr is the parole d.ocuments 2 0 A. Okay. 1 O. related. to your suBerwision and. at Bates 2 Nurnber 4L, I guess there is an aLlegation that you 3 falsely But down that you received the money from 4 Mr. Hernand.ez and you indicated that it was your 25 belief that the money was f rom Mr. llernand.ez i FRIEDMAN LOMBARDI & OLSON cou RTREPORTERS 199 L correct? 2 A- Yes, ma'am. 3 O. ft, was also stated there that you reported 4 on the amended Form 8300 ttrat Mr. Hernandez deliwered. 5 all of the reported castr drug proceeds when there 5 were muJ-t.ipJ.e John Does. 7 A- Wtrere are you reading thala 8 O. f am reading ttrat, on Page 4L of the Of f ice 9 of GeneraJ. Counsel E: ,' 11 MR. IdEISS : Right above " criminal historlr. L2 THE WITNESS: I see it,. I hawe no idea 13 what that means. L4 BY MS. SMTTH: 15 a. You trave no recollection of 15 A. I have no id,ea wtrat that, means. L7 O. Were there other individuals wtro de1ivered 18 caslr tg you, other than Mr. Hernandez? 19 A. No. 20 O. You ind.icated that the Florid.a Bar rule 2L prohibited you initiaLlfr from putt,ingr anybody's narhe 22 on t'he form and that you didn't d.isclose a nErme until 23 the IRS carne back to you and said: "If you d.on't 24 disclose it, we I re going to f ine you,'? 25 A. It's Ethics Opinion 92.5, it leaves a J.ot FRIEDMAN LOMBARDI & OLSON COURT R E P O RT E R S 200 1- of the d.iscretion to tfue attorney, but it giwes the 2 attorney very much the d.iscretion, and. I think ttrat 3 the opinion even says: The Florida Bar's Bosition is 4 that it shorr1d not be d.isc1osed. But it d'oes it 5 does giwe the attorney discretion to make his 1etr 5 me back up. 7 I think it advises the J.awyer to comp1.y 8 wittr a sununons or a srrloBoena. But in the absence of 9 tlrat, it gives the. lawf'er discretion, but tl.at the t0 position of the Bar. -- you actually have it here 11 the position of the Bar is that it,'s priwileged. L2 0. So then once you've mad.e that disclosllre, t3 d.id you gto back to the Bar and salr well-, first of L4 a]-J., let me back uI>. 15 Did the IRS subpoena this information? 15 A- No, ma'am. L'| A. Did you consult, the Florida Bar about t'he 18 situation before you made ttrese disclosures? 19 A I didn't have to. 20 a. You didn't f eel- you don' t f eeI that' 2L there was any privilege wiolation by you fil3-ing out 2 the f orm? 23 A. Not at all-. 24 O. Did Mr. Kramer's n€rme appear on t,hat fom 25 anywhere? FRTEDMAN, LQMBARDI & OLSON COURT REPORTERS 20L 1 A. I don' t think there is a box ttrere ttrat 2 asks for that information. 3 A. Have you been offered, an attorney position 4 with your firm if you're granted admission to the 5 Bar? Readmission, I shou].d say. 5 A. A position as a lawyer? 7 Q: Yes. 8 A. Yes, ma'am. 9 MR. WEISS : I 'm sorry, I d.id.n' t understand. 10 your answer. 11 TIIE WITNESS : YES. L2 MR. IIIEISS : Ttrank you. 13 BY MS. SMITH: L4 a. And. you're sayingr that these incidenees 15 ttrese criminal of f enses occurred. because of , 16 essentiaLLy, greed,. Arrd I assume that your pay wiLl L7 increase once you change if you change from being 1_8 a para1ega1 to an attorney, you t 1L start making more t9 money? 20 A. I have no idea. I think ttrat ttrat depend.s 2L on how the firm is doing. It varies from year to 22 year. I certainly woul-d, hope so. 23 Q. WelL, your job wou1d. change; right? 24 A. Yes. 25 a. You wou1.d start interacting with clients FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 202 l_ and probably going to arbitrations and things, so you 2 r,rould e>rf)ect it to ctrangre ; correct ? 3 A. I certainly worrld hope so. But agrain, that 4 wou]-d d.eBend on the giross receipt of fees for the 5 year. 5 a. I guess my question is: How. can you be 7 sure that you're not going to be yorr know, get ttre 8 itch again once you start making more money and' 9 having direct contact with clients and. their funds? 10 Securities is a Bretty lucrative industry, 11 isn't it? L2 A. Ms. Smith, what we're inwolved in are 13 securities arbitrations. We represent most aL] of t4 our clients are very elderJ.y inwesLors. There is no 15 cash involved, ttrere is none of that. We 15 represent them against ]-arge brokerage houses such as L7 Merri1]- Lynch, Morgan Stan].ey who, on occasion, trawe 18 rogrue brokers workingr for them. Those are the cases 19 ttrat we pursue and. we should pursue-. Many times 20 there is unauthorized trad.ing, churning, milLions of 2L d.oLl-ars are l-ost. It I s a very satisfying, gratifying 22 business to be involved in, and. there just is no 3 situation wtrich would present itself where I wouId, 24 harre to ewen consid.er a breach of an ethical dut'y. 25 It wouLd. never haBpen agrain, never. FRIEDMAN, LOMBARDI & OLSON c OURTREPORTERS 203 1 a. With respect to your taxes 2 A. Yes, rna I arn. 3 A. moving along. 4 With respect to 3 (A) 5 A. I 'm sorrlr, you said 3 (A) ? 5 a. Specif ication 3 (A) , whiclr re1ates to your 7 L996 tax return being fiLed untimeJ.y. I A. Yes , lna r arn. 9 O. You indicated that it 's your belief that 10 the IRS mad.e a ruistake; is that 11 A. Yes, ma'am; that is correct. L2 a. Did you take thaL belief to them and. wet 13 that with them? L4 A. I never I never was informed. of it until 15 the IRS transcript' was turned. over to me fairly 15 recentLy. f had no idea. LI A. Okay. But you an acknow1.ed.ge that tl.e IRS 18 charged you a pena]-Ly for fiLingr your LggS tax return 19 after the deadline? 20 A. I had f don't recoll_ect that at aIl_ and. 2L f had no idea, again, unt,iL l got ttre Lranscript. 22 a. But, that is what the transcriBt reflects, 23 is it not,? 24 A. There is an entry on the transcriBt; 25 comect. FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 204 l- a. And it does not indicate that that fee 2 the pena]-ty that they assess for filingr after the 3 dead1ine was rescind.ed or otherr,vise overturned? 4 A. No, ma'am. I'm not contesting that that 5 entry is there, not at all. I'm just saying that I 5 fiLed the tax return on time. IRS makes -. they just 7 recentl-y made a mistake that I t'urned over to the I Board a coup1-e of monttrs ago concerning tax payments 9 sent in. It was an honest mistake. I pointed it to 10 ttreir brougl.t it to their attention and they 11 admitted it. so t2 a. A&nitted. what? We're not talkingr about 13 your L996 return now. L4 A. Not at a11,, 15 A. Okay 16 But you agrree t,trat the IRS noted it to be L7 l-ate? 18 A. On their transcript, that is what is 19 ref l-ected; y€s, Ms. Smith 20 a. And. you have an accountant; correct 2L A. I do. 22 0. Mr. HilI, I believe. 23 And you've been working with him since the 24 '80s, you indicated? 25 A. r think, 1989. FRIEDMAN, LOMtsARDI & OLSON COURTREPORTERS 205 1 A. You had f iJ-ed several. tax retunr.s as an 2 attorney prior t,o you being disbarred. or your 3 resigmation; right? 4 A. Sure. 5 a. So you knew that you \,rere suBposed. to pay 5 your taxes before ttre 15th 7 A. Of course. 8 O. even if you get an extension. 9 A. Of course. 10 a- Arrd you didn't, do that for the years 11 specified in SBecification 3(B); right,? L2 A. WeIl, for many reasons 13 a. Rigrht. Brrt it wasn' t done. you d.idn, t L4 comply with ttre .law for whatewer reason; correct? 1_5 A. For whatewer reasoni okay 15 Q. Did you ever gro to your accountant and, L7 arrange something with him for l.im to ta"lr to assist 18 you wit,h getting your taxes in on time, ttre payment? 19 A. It, would have been a waste of time. He 20 couLdrrrt hawe helped. me do anyttring, rro. The 2L answerr s no. 22 Q. He couldn, t trave helped you to calculate 23 the taxes ttrat you were goingr to owe so tl.at you 24 couLd. preBay on time? 25 A. IIeIl, that's it depends on what the FzuED OMBARDI & OLSON COURTREPORTERS 245 1 se]-f -empIo1'ment tax comes to, it d.eBend.s upon the 2 business dedrrctions that you might hawe. 3 ShouJ.d I trave paid some of them earlier? 4 Of course, Ms. Smith, of course. 5 O- I'm just I bring that up because you 6 testified t,hat with respect to your 2011 taxes, you 7 said you tried to pay and you thougrl.t you paid 8 enorrgh, but, yorr tradn't - 9 ' So what I'm trying to figrure out is why 10 did.n't you gro to your accountant and have him say: 11 "Look, this is what f ma.de in 20LL --" you're notr L2 se]-f-emp].oyed at that time; correct? 13 A. WeIl, not se].f-emBloyed, no- t4 a. Rigrht.. . So ttrere woul-d. be no 15 se1f-employment tax? 15 A. WeI-J. , lr'm on an independent contractor L7 basis with the firm, so there is. 18 a. Okay. But cou1.d. you stil-L have gone to him 19 and indicated: "This is what I earrted., can you te1l 2A me how muctr I need. to pay? I' 2L A. I try to do that, y€s. 22 A. And what trappened? 23 A. When you have X nurnber of d.oLlars come in, 24 in spite of what I'm paid., Irm sti]-l trying to pay 25 past obl-igat,i ons to members of the f ami1y. My FRIEDMAN, T OMBARDI & OLSON COURT REPORTERS 207 1 d.augtrter just recently graduat,ed from law school r 2 have debt, I trave her stud.ent Ioans. I have f 'm 3 actualLy tre1ping to support trer right now. And so it 4 all boils down to: "You hawe so many dollars to work 5 with." Arrd if my darrghter is in law school and need.s 5 something paid., that ' s irmnediate. IRS will get their 7 morrey and. they wiJ.I- get their money with interest, f I hawe proven that. 9 O. So is it fair to say that you've 10 prioritj-zed your other expenses over the fRS? 11 A. Not all the er 13 an emergency and. need.ed it; y€s, ma. ' am. 7,4 a. When were your fRS 1.iens released., sir? 1s A. f think the $85,000 one was released on 15 Apri1 AEh, 2010, but f '11 defer to the d.ate on L7 ttre 18 MR. IiIEISS : yolr , we Erot it there. 19 THE WITNESS : Oh, okay. Otr, atr l- right . 20 MR. WEISS: Tl.at's the date that, was 21 testified, to earlier. 22 BY MS. SMrTH: 23 O. And you st,iLI owe on yorrr L997 taxes, but 24 you indicated. you're, f guess, goingr througrh an 25 aBpeaL process FzuEDMAN LOMBARDI & OLSON COURTREPORTERS 208 1 A. I Eun, Yes. 2 A' trYing to arerue 3 A. Yes. 4 A. Okay. And trow long do you anticipate that 5 wi]-]- take? 5 A. Oh, I think that will be fairly soon. I'm 7 o 9 m]'seIf and. represent myself . Tf f win, that would. be 10 great. If I lose, I'm going to resolwe ttre matter 11 one way or the ottrer. I'm not goingr to I'm not, L2 goingr to play games, I've been ttrrougtr enougtr of 13 ttris. L4 O. Right... That was sort of my question 15 A. Sure. 15 O. -- what your intent, was. L7 A. Sure. 18 a- In Ll.e event that you are unsuccessfuL L9 not that f 'm wishing ttrat uBon your- if you were 20 unsuccessfrrl, wlren d.o yorr anticipate being abLe to 2L pay them the $27,000 tl.at you owe them? 22 A. Assuming that I'm unsuccessful, that's 23 going to depend upon them. In view of my track 24 record,, theyrre probabLy going to be able to work 25 out that's a ]-arge sum of money , don't get me FRIEDMAN, LOMBARDI & OLSON COURT R E P O RT E R 5 209 1 wronE[, but it is a manageab].e sum of money, and. r,m 2 sure r can work out something wit,h them to retire it. 3 But orre way or the other, it's ggiIrg to be resorved. 4 A. But yorr don't know wtren? 5 A. I d.on' t . A1-l I can telJ- you is I check my 5 mailbox every day for a not,ice. f rm e:rpecting it 7 everY da)a, n9q -_- and yorr, L1 receiwe notice of it or 8 tlre Board. wi].]. - 9 A. As things stand with your current income, L0 in the event, you are unsuccessful, do you feel that 11_ yotl hawe the means to pay tlrem? L2 A. ' I d.o. 13 a. And you testified. regarding your ZOL? L4 taxes, ttrat you .are goingr to fiLe on time, which is 15 on Monday. As of Monday, wi1-L you lrawe paid enough 15 money in to satisfy your tax obligations for your L7 20L2 18 A. As of Monday, with the check that I wi]-I 19 submit with my return, one hund.red. percent of my tax 2A Liability for 2OL2 will be satisfied. 2L O. You aLso had a in 1998r yoll had a g7,000 22 judgrment ttrat was entered. against you in fawor of 23 AT&T 24 Do you recaLL that? 25 A. I do. FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 270 L 0. At your inwestigative hearingr, You informed 2 tlre Board you that were in the Brocess of sett1ing 3 that issue with AT&T. 4 Hawe you settled that matter since your 5 inwestigrative hearingr? 5 A. I Lrave not sett1-ed it because AT&T morphed 7 into City GrouB. Mr- Hirsch is no J.onger here, brrt 8 we cou]-dn't f ind an attorney that reBresented. City 9 Group in order engagre in settlement d'iscussions - So 10 10 d.ays B9o, I filed a motion to set asid.e ttre 11 default judgrment it Pal-m Beach Cor:nty Court . It is L2 presently being assigrned a case nurnber- As soon as 13 it is, r'm goingr to fonuard. though tci you all-. 14 O. Have I'rou paid. anything toward.s ttre judgrment 15 since it was entered in 1998? 16 A. We].l- r rro, becanrse r think it ' s irrwalid,. I L7 was not served with the ].awsuit. 18 a. Well-, do you disBute that you did owe AT&T 19 money at that time? 20 A. No, I d.on'' t disBute ttrat. Tlrat I s why f 'm 2L l-ooking toward. settled. it and. not not f igrhting it. 22 f 'm not going to I just want to seEtLe it, resolve 3 ir. 24 A. If . you don't disprrte that you owe them 25 money and. been established how much you OMBARDI & OLSON c OURTREPORTERS 2L1- L owe ttrem, lvhy d.on't you just, Bay ttrem? 2 A. Because I do wtrat 1.awyers do, If they take 3 a l:ard position, then if you're asking me to conunit, 4 I would. say I would pay ttre entire amrrunt. And if 5 it's necessarlr, that's exact1-y what I'm going to do. 5 But in ligrht of my other tax issues , T'm going to try 7 to settle the case, like you perhaps would. on behaLf I of a c1-iqnt. But Lf f'm not abLe to, it's going to 9 be reso1ved.. f need a].]- of these matters resol-wed.. 10 f notice rom your e>rhibits and your 0. .f 11 testimony here earlier that you'we ma.d.e sewera1. L2 donations to He1ping Hand.s and Cong>assion 13 International L4 A_ I'm sorry? 15 Q. f said: f notice from your qrtribits, as 15 wel-L as your testimony that you hawe mad.e a lot of L7 monetary d.onations to warious grouBs, Helping Hand.s, 18 lrour churcfu 19 A. Okay 20 A. and. Compassion International. 2L Based' on lll]r calculations from your 22 applicant E: L for you to make these donations to your uncI.e's 2 church and ttrese other organizations, rather than 3 complying with Baying your outstanding ob]-igations 4 with the IRS and AT&T? 5 A. Ms. Smith, I hawe verlr strong religious 6 be1-iefs. And. if you're going to 1.iwe your J.ife ,l accordingr to how you be].iewe, you need to d.o wtrat' is 8 required of you. I try to strike a happy med.ium 9 between paying my taxes, supporting my church, 10 srrpporting my d.aughter, I'11- continue to do that. I 1L hawe an emphasis on retiringr fRS d.ebt , I'm makingr L2 great gains in doing that. Hopefu1-ly in the next 13 year or two, this wil3. aLI be resoLved with the fRS, L4 Brrt I do think Compassion International is imBortant. 15 I do think tl.at every citizen shouLd think that wdy, L6 as welL. I do think supporting my church is L7 important, also i yes, rtla I arn. 18 Q. With the donations that you have rnad.e to 19 Compassion fnternat.ional- and HeLping Hand.s, do yorr 20 cf.aim tax d.eductions for those d.onations?' 2L A. Certainly. 22 Q. You test,ified that you have spent about, 550 23 hours with Habitat for Humanity. When I went tlrrougtr 24 lrour qrhibits, f didn't note anyttring from Habitat 25 for Humanity that, quantified your hours FRIEDMAN, LOMBAITDI & OLSON couRT REPORTERS 2L3 1 A. Because that was my 1og. 2 a. Okay- 3 A. A shift is forrr hours. 4 a. You d.on't trawe any d.ocumentation f rorn 5 Habitat for Huma.nity saying lrow much yorr,ve done with 5 them? 7 A. No, ma I am 8 They had a ,-- kind of a ramshack1-e way 9 of they kind of had a sign-in Iist, it wouId be in L0 front of an unfinished house with maybe a stone on L1 top of it, and al1 of a sud.den volunteers would. show L2 up. Arrd later in the afternoon, I wouJ.d. see the 13 sign-in list go flying in ttre wind.. Ttrey're a L4 wond.erful organizat,ion, I had, a great time, but 15 a . And. Ms . Szalobryt, sh.e ' s with Boca Hel-ping 16 Hands. During her deposition, she testified. that you L7 had about 37 6 trours at that time and you ind.icated. 18 that you had supplemented that. Artd i need. you to 19 telJ- me where you srrpplenrented. it --= 20 A. Sure 2L O. beca.rrse I haven't been ab1e to note the 22 supplement. 23 A. Sure. 24 I think that she testified that it was 25 ttrree hund.red. and what,ever hours you just said., as FRIEDMAN LOMBARDI & OLSON COURT REPORTERS 2L4 1 of I'ebruary I think it was 19th, if I'm correct. 2 Since then, the additional horrrs f hawe contributed 3 comes orrt to add it up 444. 4 O. But what f'm asking is: Do you trave 5 somettring from Boca HeJ.ping Hands that demonstrates 5 tlrat yorr Lrawe 444 trorrs? 7 Hawe you gotten anyttringr else from 8 Ms. Szalob4gt since trer deposition 9 A. Oh,. I'd be happy 10 A. to indicate ttrat? 11 A f 'd. be happy to griwe it to you. t2 a You don't have it Loday is what I'm asking. 13 A No L4 MS. SMITII: I d.on't think I hawe any ottrer 15 questions right now, Ms. Dawis. 16 MS. DAVIS: Mr. Fried- L7 MR. FRIED: .fust one question. 18 Wtren you were going ttrrough alJ- this in the 19 sixties, did the fear factor come into plalr? I mean, 20 it sounded like a pretty rough crowd. Did this have 2L anythingr to d,o with t,he decision-making process? 22 THE WITNESS: Decision 23 MS. DAVIS : WouLd.n't tlrat be Lhe nineties? 24 MR. FRIED: WhaT did I say? 25 THE WITNESS: You said, "the sixties." FzuEDMAN LOMBARDI & OLSON COURTREPORTERS 2L5 1 Ttrat.'s taking us both back to an important part of 2 our 3 MS. DAVIS: The nineties. 4 THE WITNESS: Are you ta1king about d.ealing 5 with these ultra-dangrerous clients? 6 MR. FRIED: Yes. 7 THE WITNESS: If you trave tlrree hours one I day, I can teII trou aJ.I. of ttre absolute frig6teningr 9 e: L4 Bhilosophy, you govern yourself accordingly. Maybe L5 that's why I al-ways went that extra mil.e in 15 preparation for a trial. The Errrswer is yes, ttrere L7 was pJ.enty of fear fact'or. 18 MR. FRIED: That was my on3.y guestion. 19 MS. DAVIS: Mr. Austin. 20 MR. AUSTIN: Mr. Fergruson, Ms. Smith asked 2L you a question. ApparentJ.y you d.ecided. you didn't 22 want to answer that question, so let me repeat the 23 question and, rephrase it as best as I think I 24 und,erst,ood Ms . Smith, s question, and ttrat was it 25 had t,o do with your earlier testimontr that, the FRIEDMAN LOMBARDI & OLSON COURT REPORTERS 2L6 1 basis one of your rationales for the unlawful 2 activity you engraged in was greed 3 THE WTTNESS: YES. 4 MR. AUSTIN: livingr in the fast lane and 5 that kind of thing 5 THE WITNESS: Yes. 7 MR- AUSTIN: f think the heart of her I question was: How do we know that once you start 9 making a srrbstantial arnount of fees again, that lfou 10 wolr't succr:rnb to the. same greed ttra.t you acknowledged. 11 ttrat you srrccumbed, to back then? Having nothing to L2 d.o with access to client frrnd.s, w}lich was your l-3 answer. 7-4 TIIE WIT.NESS: Al1- I can giwe you, sir, is 15 my assurances as a d.ifferent, man and my track record 15 of conducting and carrf ing myse].f over the Last L2 L7 years in dealing wit'h every individual arorrnd me in 18 aJ.J- conceivable types of situatiorrs. And situations 19 in ttre office discrrssions, ettrical- issues; having 20 been sewerely punished, having taken my punishment 2L like a mani not.wanting to go ttrrough t,hat again; 22 learning what, I've done wrongi admiuting to BeoBLe 23 wtrat I've d.one vrrong, I'm just a dif ferent Berson. 24 And I twe iuorked very hard, to prove to everybody and 25 to you that r am a d'ifferent gruy, r Erm a d'ifferent FRIEDMAN. LOMBARDI & OLSON COURTREPORTERS 2L7 1 marx, and nothing like that wouLd ever, ever, ever 2 happen again. 3 MR. AUSTIN: Ttrat lead.s into my second 4 question, t,hat is your having been a changed man. 5 But as r recall your testimony, you felt compulsion 5 not to d.isclose your background to one charitable 7 organization, but you subsequenlIy did. not feel ttrat 8 compulsion to not disclose t,hat to anottrer ctraritabre 9 organization. L0 THE WITNESS: Had. I disclosed. the 11 mistake I made, sir, was not d,isclosing it early on, L2 at the \rery outset like I did with Boca Helping 13 Hands, that's the mistake I urade. L4 And. then you see, wl.ren I first cErme 15 home, Rictrard. steptrens' let,ter to you arI described L5 me as a wound,ed, BupBy, acting like a wounded puBBl.. L7 I cou1dnrt think of a better d.escript,ion than that. 18 I could.n' t look Beople in the elre wtren I spoke to L9 them. I didn't, want to speak to family members. I 20 d,id.n't, even want to teII people that I had Brewiously 2L been a Lawyer. f was so ashamed, and humiliated, it's 22 impossible for me to describe it to you now. 23 So the mistake I mad,e was not disclosing it 24 at the outset. And you know wtrat, things would. have 25 probabJ-y been just the sarne. John ShelIey and Paul- FRIEDMAN. LOMBARDI & OLSON COURTREPORTERS 2L8 l_ Johnson probab1y would. hawe enjoyed my trelp and 2 reLied upon me just exactly the sarne, you're right. 3 Brrt I d,id.n't, it was a mistake. And then as time 4 went orr, I uras so embarrassed, so I couLd trard.l1r 5 look them in ttre eye everfr time I went there. And 5 then when they invited. me to be on the Board of 7 Directors of the South Pal-m Beactr ChaBter, I was I beside myself . It was just a mist,ake ttrat was 9 BerBetuated as time oh, I was putting in aJ-1. the 10 time, I was working conscientiously. I was as 11 reliab1e as ttre next person, but I nrad.e the mistake L2 by not disclosing it^ at the outset. Arrd so when I 13 went to Boca Helping Hands, I told rryrself : rThat L4 i sn' t going to trappen . " 15 MR. AUSTIN: Wtrat was the amount of time 15 that eLapsed between He].ping Hands and Habitat for L7 Hurnanity? 18 THE WITNESS: fn between? 19 MR- AUSTIN: Yes. 20 THE WITNESS: Several years. 2L MR. AUSTIN: Ttrank you . 22 I lrave no further questions. 23 MS. DAVIS: Mr. Pratt. 24 MR. PRATT: ifust, I think, maybe one . 25 I wanted to cLarify. Your financiaL FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 2L9 l_ stewardslriB, let's calL it ttrat , of the or let,'s 2 jrrst say your deal.ings with ttre firurs ttrat you have 3 prewiorrsJ.y been with as a Baral-egal, }.awe you had 4 and I'm just trying to cl.arify your rol-e in those 5 firms and wtrether or not, that f want to make sure 5 that ttrat -- wtrettrer or not it d.id. or did not incrud.e 7 arry financial resBorrsibilityt as it pertains to I clients. 9 THE WITNESS: No, sir. It's a good 10 question, it's a proBer question. 11 f ,m just a paral.egal. In otlrer word.s, I t2 d.onrt sigm anythingr. Brad, and. Chuck wi].l say3 ,,Hey, 1_3 Don, can you take a look at ttrese account L4 statements. " Or:. . "Hey, Don can .you d,raft this 15 complairtt." Or: "Hey, Don can you write ttris mot,ion 15 to compel-." Or: "Can you resBond. to this discoverl' L7 request. " And I just draft, it, and. give it to t,hem, L8 they review it and. they sign it. So everything I d,o 19 is rea3-Iy und,er their supervision. I- really d,on,t 20 make any decisions at al1- . f d.on't send, out J.et,ters. 2L I'm in my office in front of my comButer al.l day 22 long 23 MR. PRATT: And then at one point you 24 t,est,ified, I believe, Lhat you were art ind,ependent 25 contractor. FzuEDMAN LOMBARDI & OLSON CO.URTREPORTER 220 1 THE WITNESS 3 YES. 2 MR. PRiATT: Wtren was ttrat? 3 THE WITNESS: Wtrat happened was see, 4 there cErme a Boint in time that I app].ied to the 5 Maine Bar. The reason I did that was becanrse in 5 Apri1. of 2009, there was a proposal to forever bar 7 from menbership in the FLorida Bar people ].ike me 8 t'l:at haVe been con'victed of felonies. This was April 9 of 2OO9. 10 When I ]-earned that, I didn' t know wtrat, to L1 d.o because I had. been studying for the Florida Bar, L2 ttrinking that that was a sure thing to be passed. r 13 inmrediately, frantically did some researctr t.o find. if L4 Lhere were states..that you could -- you d.idn't lose 15 your ciwil rights, you could still app].y for ttre Bar. 15 Maine was one of them, we trad. been'ttrere, we had L7 vacationed there, love Maine. 18 So thinking ttrat I newer had a ctrance, 19 d.idn't trave my cirriL rights restored at ttrat point, 2A t'hinking that I never had. a ctrance or the chances of 1 me being a Florid.a 1awyer again were probably very 22 minimaL, I decided to take ttre Maine Bar. To my 3 strock, I Bassed Lhe Maine Bar, went ttrrough a Brocess 4 much like this and was invited to join the Maine Bar, 25 became a member. So, ttrat, was FzuEDMAN, LOMBARDI & OLSON COURTREPORTERS 22L 1 MR. PRATT: Wtren was ttrat? 2 TIIE WITNESS: E'ebruarry 20t-11., ZOLA. So 3 right after being sworn in in Maine -- whiclr I,ve 4 d,one nothing with the license by the way -- I flew 5 back to Souttr E'I.orid,a after wisiting my mottrer, flew 6 back to South E.I.orid.a and sat right, d.own wittr Brad. 7 and Ctruck and s1id,: Listen, I don't know wtrat if 8 anyt.hing I can d.o with my Maine Bar license, I,m 9 uncl-ear - f hawen'L done / arry researctr into E'lorida 10 ethics opinions or Elorid,a Supreme Court opinions, r 11 just don't know. tet,s arrange it so Irm orr a:r L2 ind.ependent contractor basis. 13 Monttrs went by and I spent countless hours L4 doing research, everlrthlngr and. I just d,ecid.ed that 15 it was my d.eeision t}.at I was not' going to jeopardize 15 at al1., wtren ttre time carne, 3.ike I'm sitting here L7 right now, whether there was any issrre of whettrer I 18 was Bracticing 3.aw within the corrrers of ttre State of 19 Florida. So I made ttre d,ecision not to use my Maine 20 license at aIL, but I was an independ,ent contractor, 2L which I still ELm, but ttrat,'s going to ctrange. 22 MR. PRAET: So Iet me get back to that in 23 just a minute. 24 THE WITIIESS: I didn t t mearf,, to give you 25 that, Long answer, bqt- I needed to teII. you }.ow that FRIEDMAN, LOMBARDI & OISON C O U R T R E P O R.T E R s 222 1 cErme about. 2 MR. PRATT: Okay. And just so I'm clear 3 here, as it relates to your Maine Bar J-icenser You 4 said. ttrat ttrere has been no activity, you'we taken no 5 cases. 5 THE WITNESS: NO. 7 MR. PRATT : No comBarry - - yolr ' re not t'tre 8 head of any comBarrfr 9 THE WITNESS: No 10 MR. PRATT: -- in Maine or anything of ttrat 11 nature? L2 THE WITNESS: I've done absolutely zero 13 with ttre Maine license, other t}-an maintain m1r CLE L4 cred.it,s. 15 MR. PRATT: Okay. And obviously, LG probably is there a fee? I would assume there is L7 a fee. 18 . THE WITNESS : Yes, ttrere is a. f ee . And' 19 maint,ain your CtE credits, and I hawe-. the actsive 20 in-good.-standingr Bar card in my Bocket ttrat basica].ly 2L stays there. I just felt it's safer safer not to 2 d,o anything. 23 MR. PRATTs with the finn that you're 4 25 back to the former question. I asked., what do you FRIEDMAN, LQMBARDI & OLSON COURT REPORTERS 223 L anticipate your financial responsibility for ttrat 2 fir"m would. be, if you remain an attorney at ttrat 3 f i:rm? 4 THE WITNESS: Oh, probably zero, Brobably 5 zero. We have Ctruck Scar1ett, the partner is he, s 6 a finance major, tre hand].es a]-]- of the finances, all 7 of ttre trust account accounting, all of ttre 8 settl-ement negrotiations, he handles that nor would 9 f want to be inwoJ.wed in ttrat. That' s just 10 MR. PRATT: WeII, I am just not familiar, 11 exact]-y, I giuess, wittr the nature of L2 THE WITNESS: Okay. 13 MR. PRATT? -- exactLy what, it is you might L4 do and maybe you .can kind of stred, some ligrht on that,. 15 THE WITNESS: Sure. L6 MR. PRATT: Because I d,on't know if you L7 bill hours, r don't know if you pay a flat, fee. 18 THE WITNESS: No. 19 MR. PRATT: f d,on't know if_.your clients 20 come to you and there is some arrangement or 2L contract, kind. of errpl-ain that 22 THE $IITNESS : Here' s how it works in eveqir 23 case. The client, feets he's been wronged, by a 24 stockbroker, he's.Iost, $500,000, or a couple tras last 25 money. They come in, they speak to ttre lltrysr they FRTEDMAN LOMBARDI & OLSON COURT REPORTERS 224 l- work out an agreement wtrereas t'tre fisn is going to 2 represent okay, yort're asking me within a 3 position. 4 Okay, they come in -- assrrming I'm an 5 attorney, they would come in, rrd speak with them -- 6 we'd speak to them, evaluate whether they have a case 7 or not, w€ ask them to bring in their d'ocrrments. We I then make a final decision if we believe tlrat there 9 tras been fraud or unauttrorized t'rad'ing or someLhing, 10 we have them sigm a retainer agreement, it's usually 1L anlnvhere between 25 and 35 percent contingency fees L2 only, it's ttre only retainer agreements ttrat ttre f irm 13 becomes inwo]-rred in. L4 So fast..forward. to the case. Ninety-five 15 percent of ttre cases in this business settle, 16 depending on ttre strength of the case can dictate ttre L7 percent,age. If it's settl-ed or if it goes to 18 arbitration trearing and ttre fir^rn is ord.ered to Bay. 19 In this business, the firm has 30 days. There are no 20 aBBeaIs, there is no anythingr. If the firm loses, 2L they Bay. Ttre ctreck is then made out to bottr the 22 firm and, the client, it is then given to Ctruck 23 Scarlett, he then deposits it in the trust accorrnt 24 and then a final settLement is drawn up, it's given 25 to ttre client to approve and. sigrn, and. then he sigms FRIEDMAN. LOMBARDI & OLSON c OURTREPORTERS 225 1 it - And then once eweryttring is agrreed. ItBon, as far 2 as disbursenrent of monies, fees, costs t.o the f ir:m, 3 then that proceed.s to the client, then he writes 4 ctrecks f rom ttre trusL account. 5 So I really never will become and, reaJ.ly 5 don't want to become never wi].]. become inwolwed. in 7 ttre trand.ling of funds. 8 MR. PRATT: WelI, I guess the only way ttrat 9 it' sounds like there might be some tylpe of incentirre 10 tlrere, I would imagrine , if yorr were to be a partner 11 in your fi:rn; is that correct? 1-2 Do you und,erstand what I'm getting at? I 13 d.on' t know, maybe there is or maf'be tlrere isn' t . If L4 you bring in a client, let's just say. In some 15 firms, obwiorrsly, that is your client; arnd no matter 15 wtret,her you do the work or one of your oLtrer L7 associates d.oes ttre work, you make a piece of ttrat. 18 ilm sure you're probably faniliar with that kind of 19 scenario. 20 THE WITNESS: Our firm is is the 2L l-awyers, it's aI1 corunon fees. 22 MR. PRATT: Okay. 23 THE WITNESS: In other words, it is Lhe 24 fir:rr's fees 25 And I don't, real-Ly know how ttrose three FRTEDMAN LOMBARDI & OLSON COURTREPORTERS 225 l_ €ruys trawe ttre Bartnership chopped up . I 'm sure Brad 2 and Ctruck have ttre major Bercentage of ttre shares. 3 And. Scott, being a new young lawyer, I'm sure he has 4 a manor not as big as he wants, brrt he has a minor 5 part. I believe the way they do that is they each 6 have ttreir draw. And then at ttre end of the year, if 7 there are monies J-eft over, then they chop it up I accord.ingr to their percentages. I think that 's how 9 they do that - 10 So nobody is nobody owns the c].ient. 11 Ttre cJ-ient belongs to the firm- The client signs a L2 retainer agreement wittr the firm rrarne on it. So if r 13 were to bring a client in and. we were successful, I L4 wouldn't get arurmpre compensation than anybody else l_5 wouId. 15 MR. PRATT: Un1ess frou were, ELS you Bointed L7 out before, like a sharetrolder in the firm. 18 THE WITNESS: I would get that pro-rata 19 share as a sharehold.er; y€s, sir . 20 MR. PRATT: . That I s all I trave right now. 2L MS . DA\IIS: Mr - I"awrence . 22 MR. LAITIRENCE: Look at the Office of 23 General CounseL extribits, I think you have them in 24 your hand. Docr:nrent Number 3, wtrich is the d.ocket 25 sheet for ttre united. States District Court which is FRIEDMAN, LOMBARDI & OLSON CoURTREPORTERS 227 L ttre 1993 case. 2 THE WITNESS: Okay. 3 MR. LAITIBENCE: Document Nurnber 404 - 4 TIIE WITNESS: AlJ- right. 5 MR. TAIaIRENCE: Tttat,s a plea agreement and 6 that's your pfea agreement. 7 THE WITNESS: Yes, sir. I MR. LAIaIRENCE : That ' s nowtrere in this 9 record; is that correct? 10 THE WfTNESS : No - f t ' s. usually und.er sea1, 11 ttrat's why. The Court the Court f d.on,t know L2 if my plea agreement was ever -- it doesn't say 13 there. It, doesn't say there, but plea agreements in L4 criminal cases are usually ordered under sea1 by the 15 judge so that the peopJ.e don't know who is 15 cooperating and who isn't. Now, sometimes it,'s L7 sometimes it's reLeased, sometimes it's not. I never 18 real.ly cared whether mine was released,. So as we sit 19 here, I can't, teII you if it was. But ttrat,s trow 20 it's no::maLly done in federal court. But y€s, 2t they're always fiLed. with ttre corrrt, so the judge 22 knows at the time of sentencing what the deal is 23 between ttre U. S . Attorney and ttre defense counseJ. . 24 MR. LAhIRENCE: Well , if it,s under seal, it 25 wou1d, lrave beeu. 422 or 423, those are d,ef initely FRIE.DMAN, LOMBARDI & OLSON COPRTREPORTERS 228 1 under sea]- - 2 THE WITNESS: YES. 3 MR. LAIaIRENCE : It says it ' s under seal . 4 THE WITIUESS: Correct; right. 5 MR- LAUIRENCE: Ttrere is nothing under 404 5 that it's under sea].. 7 TIIE WITIIESS: OkaY. I MR. LAITIRENCE: But be that as it may, you 9 would agrree with me that ttrat p]-ea agreement actually L0 has ttre factual basis at ttre back of it and. that will L1_ probab].y teII wtrat facts you were pleadingr grui].t'y to L2 as it re].ates to the superseding indictment or ttre 13 indictment. L4 THE WITNESS: You're dead accurate. It 15 usually tras a very basic paragraph of the 16 a1-legations, yes. L7 MR- LAITIRENCE: So as vre sit trere today, we 18 real}y don't know which Bart of the 1993 suBersedingr 19 indictment .you assented to or to1d. the Courts "Yes, 20 that is totally trrre; " becattse we have ttre 2L supersedingr info:mation with al-]- the different, overt 22 acts. But in the absence of ttre Blea ag:reement, we 23 reaIly don't know --- 24 THE WITNESS: No, my Blea wouId, have been 25 directed to ttre two counts of the suBersedingr FRTEDMAN. LOMBARDI & OLSON cou RTREPORTERS 229 1 information. 2 MR. LAIIIRENCE: Right . I understand, t}.at 3 ttrose are the essential elements of t,he two counts. 4 But I'm taJ-king about the factual basis. For 5 instance, the overt acts are one ttrrough sewenteen 5 owert acts . We d.on' t know wtrich one of ttrose owert 7 acts was actuarly placed in the factual basis for the I p].ea agreement. So as you sit here today, eveqirbody 9 could says "Oh, you pled grui].ty to all L7 overt 10 acts. " But do you know whether aJ.I- L7 owert, acts 11 were included in ttre factual basis of which forzned, L2 ttre basis for the plea agreement, which you worrld 13 }.awe had to te].l ttre magistrate judgre or ttre district. L4 judge: 'f agrreer.. ttrose facts are correct are 15 accurate. r' 16 THE WITNESS: I don,t recaIl, sir. L7 MR.. LAI^IRENCE: One other thing I want to 18 ask 1rou. Going back to oifice of General Counse]. L9 again, Docrrment Number 5, and. iU tras your criminal. 20 historyr. I{tren you were asked. the quest,ion on d.irect 2L by corrnsel about your prior criminal history -- this 22 is on Page 4L, now 4L and. 42. 23 THE WITNESS: Okay. 24 MR. LAIVRENCE : you did conced.e that, you had, 25 a Bossession of unregristered grun charge, f guess that FRIEDMAN, LOMBARDI & OLSON COURTREPOR TERS 230 1 was in L9 67 . 2 THE WTTNESS: OKAY 3 MR. LAI{RENCE: Ttrat L962 charge, was ttrat 4 a].so you? 5 THE WITNESS: NO. 5 MR. LAIaIRENCE: Then when you look at 7 Page 42, you hawe those Hi1lsbororrgh County clrarges I in 2OOA and 2001 and 2006; is that you? 9 THE WITNESS: No - Ttrat was establistred at 10 mlr investigatiwe trearing that ttrat wasnrt me; 1_L d.ifferent Socia]. Securitlr number- L2 MR. LAITIRENCE: Going to Of f ice of . General 13 Corrnse]. g , Bates Stamp 7 2 , ParagraBh rr Dtt as in David . L4 THE WITNESS: Sewenty-two, did you sa'Y, 15 sir? L6 MR. I,AIAIRENCE : YeS, SiT. L7 THE WITNESS: Okay. 18 MR. LA$IRENCE : Your counsel, Mt. Sonnett, 19 ind.icated that with regrard to ttre charge d.escribed in 20 corrnt orre, overt acts eigtrt ttrrougtr ten, and count 2L two of the rnformation. Ilere we have and l-imits 22 the overt acts from eigrht to ten, when we looked, at 23 the indictment earlier. Ttre indictment the overt 2 4 acts indictmenL would be I should say i 25 "SuBerseding Info:cmation, " not "indictmelat, " but FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 23L 1 Information- Office of Genera]- Counsel Pagre 3 2 througtr 5, the overt acts are actually 1 ttrrough 17 . 3 But in this Elorida Bar fesponse thaL your attorney 4 did on your behalf , lae's ind.icating that with regard 5 to owert acts eight througtr ten so he exclud.es LL 5 ttrrougtr L7 -- tre's indicating ttrat you're acting in a 7 personal first of aII, that you pled. gruilty to I those two charges that tre d.istingruishes, the owert 9 acts eight through ten, and. tre states tl at yolr're 10 actingr in a persona1 capacity and not as an attorney. 11 Ttrat's not necessirily true, is it? L2 THE WITNESS: I rea1J-y d,on't t'hink it's 13 necessarily trrre eit,her. L4 MR. LAITI.BENCE : Okay. 15 TIIE WITIIESS: But he f iled this af ter I was L6 incarcerated. I'm not so sure I saw ttris beforehand. L7 MR. IrA$IRENCE: Then mowing along to Bates 18 Stamp L34, Office of General Counsel, wtrictr is L9 Exhibit 14 - 0 When you get to t,hat pa9€, let me know. 2L THE WfTNESS: I am here, sir. 2 MR. LAIiIRENCE: I Bresume this tax return is 3 yorrr 20L0 tax return that was prepared by Mr. HiII, 4 yorrr longt,ime CPA. But on Page 134 Office of 25 General CounseL Bates Stamp L34. He says: 'Various FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 232 L Bar expenses and costs. " 2 Wtrat, is he talking about? Yorr're not an 3 aLtorney, are you? 4 TIIE WITNESS: VIeII, I was an attorney in 5 State of Maine, p1.us 5 MR. LAWRENCE : This is 20LO, go ttrat would, 7 wtren d.id. you become an attorney in Maine? I TIIE WITNESS: February 21-st, 2010. 9 MR. LAIaIRENCE: But you just testified you 10 d.id.n' t. do any work in Maine or anything. 11 TIIE WITNESS: I sti]-]- trawe CLE e>rf,)errses, L2 various expenses - Plus, ttre costs of reBresent,ation 13 before tl.e Florida Bar would hawe been includ.ed. in L4 ttrat, sir L5 MR. LAWRENCE: So wtren he says: "Various 15 Bar e: 18 TIIE WITNESS: I am. L9 MR. LAIaIRENCE: And then underneattr it, it 20 says3 "Bar expenses," wltat's the difference? 2L TIIE WITNESS: You got me, as we sit trere. 2 MR. LAIiIRENCE : Then go to Bates Starnp L48 , 3 Office of. General Counse]-. 4 TIIE WITNESS: One 25 MR. LAI{RENCE : One f orty-eigrht . FzuEDMAN, LOMBARDI & OLSON c OURTREPORTERS 233 L MS. DA\/IS: Is that, the same exhibita 2 DIR. LAIiIRENCE : Exhibit, L5 , now. 3 TIIE WITNESS: Exhibit 15. 4 MR. LAITIRENCE : Exhibit 15, but it ' s stiI]. 5 Bates Stamp L48, Office of GeneraJ. Counsel. 5 THE VIITNESS : Okay. 7 MR. LAIiIRENCE : Agrain, it says there and 8 this is a part of yorrr ?OLL tax retrrrn. ft says3 9 "Various Bar e> 11 TIIE WITNESS: .E'or Bar proceedings. L2 MR. IrAIIIRENCE: So ttrat,s wtrat you caJ.J. 13 those are -- wtrat' you're ta1king abotrt is the F1.orida L4 Bar, the Florida Bar Exam Board? 15 THE WITNESS: Proceedings to d.o with this LG board, yes. L7 MR. LAIIIRENCE : In ?OLL? 18 THE WITNESS: And it wou1d, also inc1ude CLE 19 expenses that, I e:rpended. for the Maine Bar in ?OLL. 2A MR. I*AITIRENCE: Well-, how many CLEs d,o you 2L need.? 22 How many trours do you need. for eactr year 23 for Maine? 24 THE WITNESS: You need. 11.5, six of which 25 have to be in person at a seninar. FzuEDMAN LOMBARDI & OLSON COURTREPORTERS 234 l- MR. LAWRENCE : And. speaking about ttrat, you 2 indicated. in questioning Lhat with regard to the 3 Maine Bar situation, that lrou've been ttrere, you'rre 4 wacationed ttrere. 5 When was your J-ast vacation in Maine? 6 THE WITI\IESS: Otr, 20 frears a€fo. 7 MR. I,AIaIRENCE : You' re t'alking about I somettring ttrat happened 20 years ago to says "Oh, 9 you strould be a member of the Maine Bar in 2010"? 10 Is that wtrat you're talkingr about you when 11 }.ou said yorr wacationed ttrere? L2 THE WITNESS: But I d.id.n't tie it in to ttre 13 second part of your sentence. r should be a member L4 of the Maine? I .d.id.n't. follow that. 15 MR - LAIiIRENCE : WeII, in response to 15 IvIr. Pratt' s questioning, Lou said. as to your L7 imBetus or your reason for want,ing to become a member 18 of tlre Maine Bar, one of the Ltrings that you said L9 was 3 t'I I ve been there and f 've vacat-i,oned ttrere . " 20 TIIE WITNESS: Ttrat is not a reason I wanted. 2L to become a mernber of ttre Maine Bar. It wouldn' t have mad,e any difference to me wtrettrer I had ever i22 t,, been to ttre State of Maine. LILITIRENCE But your l,n MR. : in any ewent, 25 vacation something 20 OLSON COURTREPORTERS 235 1 years ago? 2 THE WITNESS r Oh, a long time aEIo. 3 MR - LAIVRENCE : I l.ave no furtlrer questions, 4 Mad.arn Chair- 5 MS. SMITH: Could. I have a brief follow-up? 5 MS. DAVIS: Srrre. You follow up, then I '11 7 ask a couple questions. I FI'RTHER EROSS EXAMINATION 9 BY MS. SMITH: 10 a . Mr. E'ergru=?rr, wtren Mr . Lawrence was asking 11 you questions regarding your ?OLO taxes, which is L2 Office of General Counsel L4, I understood you to 13 tel-I trim that part of your Bar e:lpenses were re1-ated L4 to t,his applicatiqn wittr ttre FJ.orida Bari is that, L5 right? 15 A. Yes. L7 a. Well, your Bar application is Board Exhibit 18 Nnmber 5 and. your Bar appl.ication is ilanuary 20LL. I-9 So if you didn't, reply unt,il ,Ianuary TOLL, what 20 Bossible expenses related. to the Florid.a Bar did. you 2A hawe in 2010? 22 A. The gentleman sitting t,o your left. 23 O. So you consuLted wittr ttr. Weiss prior t,o 24 filing your apBlication? 25 A. His f ees, na r a.m,. FzuEDMAN LOMBARDI & OLSON CO.URTREPORTERS 236 1- O. He clrargred you bef ore you aBplied? 2 A. I hired. trim before I applied, Y€s 3 A. Which of those is encompassing that, is 4 that ttre $5,000? 5 A- Whictr one are You looking ?t, now? 5 O. I'm looking at yorrr 2AL0 aBplicat'ion 7 your TOLO Laxes wtrich is Office of Genera1 Counse1- I t34? 9 A. OkaY, 134. 10 0. You say3 "Various Bar e:rpenses and. costs." 11 A. Okay. L2 MS. DAVIS: What Bates nr:mber are you on? 13 !{s SIVIITH: 134. L4 MS. DAvfS: Got it. 15 THE WITNESS: Yes, IBEr I arlr. L6 BY MS- SMITH: L7 O. So that's the $5,000? 18 A. *5,L92. 19 MS. SMITII: Okay. I just wanted. to cl-arify 20 ttrat. 2L Thank you. 22 MS. DAVIS: f have a coupJ-e questions. 23 THE WITNESS: CertainlY. 4 MS. DAVIS: One just may reveal that I 25 don't understand. how tax l-iens are worded- I'm FzuEDMAN, LOMBABDI & OLSON CO URTREPORTERS 237 L personally grateful for that, but ]rour tax liens 2 result from 1040 taxes; is that. correct? 3 WITNESS: flHE They result from any kind of 4 tax. 5 MS. DA\IfS: Well, but your personal 5 THE WITNESS: Okay. 7 MS. DA\IIS: f mearx, these don't trave to do I with FICA taxes for an emB]-oyee that frou wrongfully 9 heId. and didn't palr in wlren you were practicing law? 10 THE IAIITNESS: No. 11 MS. DAVIS: These are 1040 yorrr own L2 personal. taxes 13 Ttre tax 1.iens th,at I've rewiewed, name you 14 personally. 15 THE WITNESS: yes, they do. 15 MS. DAVIS: It appears that you,re filingr L7 j oint].y. 18 Your joint filer, does she also receive tax 19 liens in her nanne separate1y? 20 TIIE WfTNESS : No. My wife I can, t I 2L can I t answer ttrat . f 'm thankful for it, but I can , t 22 answer it,. 23 MS. DAVIS: I just wondered if you had, at 24 any tirne, filed. separately. 25 THE WITNESS : yes, yes . Wtren I f irst got FRIEDMAN, LOMBARDI & OLSON COURT REPORTERS 238 1 home, we were filing separate].y, sure- 2 MS. DAVIS: Okay. So there was a time? 3 THE WTTNESS: YES. 4 I gruess that, exBlains it - 5 MS. DAVIS: PertraBs ttrat e: 6 d.idn' t because ttre tax f orms I 'm looking at are 7 joint. I Here's my other question, and it refers to 9 the one ttrat I agree wittr ur. Austin, you kind of 1-0 b].ew off the answer to Ms. Smith, Mr. Austin d.id a 11 fine job. L2 Wtren this recorunendation goes up to the 13 Court, for most Bar apB]-icants, when t'tre Bar L4 Examiners make its recommendation, the Court accepts 15 ttrat recommendation. It depends on ttre applicant ' s 15 aBpeal in some case, if they ask for all- the L't materials. However , for a disbarred attorney or an 18 attornel' who resigmed in ].ieu of 19 discip1ine./disbarment, ttre Court, aS far as I cErn 20 d.etermine reads the entire file and. rnakes and 2L aLthougtr I think our reconmtend,ation is importanL, the 22 Bar Examiners ' recommend,ation is imBortant, ttre 3 Court 24 THE WITNESS: Does its own thing. 25 MS. DAVIS: -- d,oes it own thing. FRTEDMAN, LOMBARDI & OLSON COURT R E P O RT E R 5 239 1 THE WITNESS 3 YeS. 2 MS. DAVIS: And. often we get feedback on 3 the decision we made. So 4 THE WITNESS : I d.idn' t know that, but okay. 5 MS. DAVIS: Oh y€s, they d.o. And they' 11 6 be looking at this. 7 THE WITIUESS : Okay. I MS. DAVIS: And they want seven copies when 9 we send. it uB seven copies of eweryttring. Lo THE WITNESS : ,Jack never told me that, but 11 okay. L2 MS. DAVIS: And this is my third forma1. 13 hearingr in l-8 months of a d,isbarred or a t4 res i grned- in- 1 ieu -.of -d.i sbarrrent criminal d,e f ense 15 attorneY in Miami-Dade, so I hawe a Iittl.e e: L7 THE WITNESS: You sure do. L8 MS. DAVIS: In your case, you weire 49 years 19 oId at the time you notarized ttre d.ocrrments, and. 20 close in t,ime, you accepted. and transBorted. tl'e 2L $75,000. 22 THE WITNESS: Yes, ma'am. 23 MS. DAVIS: You had. been a member of t,tre 24 Florida Bar for 22 years. 25 THE WITNESS: Yes. FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 240 1 MS - DAVIS: You were not under any 2 substance abrrse problem? 3 THE WITNESS: Never. 4 MS- DAVIS: Yorr were not under a specific 5 financia]. emergency? 5 THE WITNESS: No, becanrse I wasn't Baid. for 7 that. I MS . DAVIS : No. No, You jrrst I wrote 9 down wlrat you said 3 " I knew it was wrong and. I did 10 it anyway. " 11 So you knew wtren you took t,Irese actions, it L2 was wron€J; is that correct? 13 TIIE WITNESS: I never want'ed to equivocate L4 on that - 15 MS . DAVIS: Rigrht. 15 TIIE WITNESS: f knew it was wroncr. L7 MS . DAVIS: You knew it, was $rrong, you knew 18 it was a crime. 19 TITE WITNESS: YES. 20 MS. DAVIS: . You testified' recently that 2L rrever again would. you have to consid.er a breach of 22 ethical d,ut1r. But the actions you took were way 23 beyond breach of ethical duties, these were 24 felonies 25 THE WITNESS: You're accurate again. FzuEDMAN. LOMBARDI & OLSON couRT REPORTERS 24L l- MS. DA\IIS3 -- these were crimes. 2 THE WITNESS: Yes - 3 MS. DA\IIS: So with ttrat basis, when ttre 4 ,fustices of the Supreme Court look at the materials, 5 Iook at our recommendation and. ttrey ask: "WeII, why 5 worrJ-d, we giwe this person ttre opportunity to practice 7 again? " I'd. like you to answer Ltrat. 8 THE WITNESS: Because the E'lorida Bar, as 9 approved by the F1.orida SuBreme Court, tras prowided a 10 way that people that. make a bad ctroice, J.ike 11 myself they've prowided a way, a l-egal avenue for L2 readsrission- And that, has some \rerfr serious and 13 trearry burd.en requirements, but it^ is an avenue for L4 readmission. And. they tell you straight up that your 15 burden is very hearrfr, but ttrey teII you also ttrat 15 ttrere is a way to readmission, but ttrey say you'we L7 grot to do all of ttrese ttrings and, yorr have to do alJ- 18 of ttrese things to an extent that youtve convinced rrs 19 ttrat' ]rou'lI newer do anyttring wrong again. Setting 20 aside ttre f act t,trat I've relived. that momenu a 2L mill-ion times 22 MS. DAVIS:. Yes. 23 THE WITNESS3 -- set that asid,e. Wit,hin 24 hours of me coming home, I pulLed that rnrLe and. read 25 ir I can't tel1 you how many times, and just FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 242 1 d.ecid.ed over the period of time, r was going to do 2 alJ- r could to comply with the avenue with the 3 method ttrat the E.lorida Bar and tlre Florid.a Srrpreme 4 Corrrt have chosen for me to seek readmission. So all 5 I've done during that period of time is to compJ.y 5 wit}' those requirements. I can't teII you how many 7 F1.orid.a Suprene Court opinions I trawe read.. I can I te]-I you I canrt find any rtrlrme or. reasota to many of 9 ttrem. Newerttreless, they make orre thingr real c].ear: 10 " You ' ve got a treawlt burden, Fergruson. Here ' s ttre way 11 to do it. And if you do it and. you conwince us that L2 yolr'we meL your burden, chances are you'Il get 1_3 readmitted. " So that, is trow r planned my lif e since L4 I returned trome from incarceration. 15 MS. DAVIS: So how did that ctrange you? 15 THE WITNESS: Becatise, a].ong the L7 MS. DAVIS: Not the indictment, the 18 standing on the courttrouse steps, the prison. How 19 did this process 20 THE WITNESS: I took Lhe punishment better 2L than I even thought I wou1d, I'rr just going to set 22 ttrat asid.e for tlre moment. f 've never felt, sor4r for 23 myself in this wtrole thing and, anybody who knows me 4 wi].]. tell- you that. 25 Along the way of doing what I trad. d.one, ttre FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 243 I 1- comrqunity serwice, the count,Iess conversations I ve 2 trad. witll peoB].e e: 3 course iL generat,es just tons of quest,ions in 4 response3 'rDorr, I've known you a long time. You 5 know, f 've known you a 1.ong time, Don. I mean, I've 6 known lrour family. What -- what ---rr 7 Ower the years, itls constant. And so a1.1 I I'we tried, to do with the corununity serwice, wittr 9 d.ealing wittr Beop1e is to ttrere is on1-y one person 10 that can retrabilitate rne and ttrat ' s me. And the way 11 I do tbat is t,o strow to ot'trer people ttrat I am worttry t2 agrain, t}.at I am tronest, that I am of sufficient 13 moral ctraracter, ttrat I am beLievable and f won, t do L4 it again. So eve.r-!r move I make,.t,he way I look to my 15 neighbors, ttre way f d,eaJ. with the secretaries in ttre 15 office, the way I talk to the gruys in ttre office, the t7 way I deaI with anybod,y, it's that3 ,tI,ve got this 18 job to do, f 'we got to make myseLf worthy agiain.,, 19 Because wlrat I did took me down to ttre worst. And so r 20 eweryttring I ve done, trow f ' ve governed myse1.f , f 2L have tried, to do it so that -- I knew one d,ay I was 22 groing to be sitt,ing trere and, staring at you all in 23 the face, f knew that,. I just tried, to do.as much as 24 I could. to convince you of that. Arrd. not only on 25 paBer, not on1.y Lhe cornmunity service FRTEDMAN LOMBARDI & OLSON COURTREPORTERS 244 L MS. DAVfS 3 Convince the Court'? 2 THE WITI\IESS: Yes . [Iot on).y ttre conununity 3 service logs and the Tlranksgrivings and' stuff like 4 tlrat, but trow I dea]- with people. Wtrat trrrst do 5 people put in me, knowing wtrat I have d'one. 5 And so that's wlrat I hawe desperately tried' 7 to do, I trope that I }.awe. I certain]-y hawe tried 8 trard- As I look back, of course yorr know, I 9 looked back in preparing for this. I 1-ooked back and' 10 says "Gee, you know, maybe you could have done a 11 lit'tIe something more llere, a ].itt,Le something more L2 there. " But f can say this wittrout equivocation: "I t3 worked verfr trard verlr hard. And not on].y the L4 conrnunity service. . hours, but in just dealing wittr my 15 fe].low man. " That's a]-l. 15 MS . DAVIS : TLre church you atLend now - L7 THE WITNESS: Boca Raton Commurrity Ctrurctr- 18 MS. DAVIS: Is this the church you at,tended 19 at ttre time of the felonY Plea? 20 TIIE I^IITNESS: No that' s an int'eresting 2L question it wasn't. 22 . MS. DAVIS: So the peop1.e at your church 3 know something about your felony p1ea, imBrisonment 24 and your 25 THE WITNESS: Several do. FRIEDMAN. LOMBABDL & OLSON co URTREPORTERS 245 L MS. DAVIS: Several do. 2 THE WITNESS: yes. It, s a rrery J.arge 3 churctr, it,s I be]-iewe its memberstrip is Z,SOO or 4 so. 5 MS. DAVIS: Yes. 6 THE WITtitESS : Sewera]. do. 7 MS. DA\rfS: But you,we been ab1.e to teJ.I. 8 people? 9 THE IaIITNESS : Of course . yes r slrre . 10 I don't wa1.k up to them in the middle of a 11 serwice and. L2 MS. DAVIS: Well and. I underst,and that, 13 but wtrat r refrected, on wtren you were talking about L4 Ilabitat for Hurnan+ty work and how you cou1d not 15 te11 15', . THE WfTNESS: It's different it, s L7 d.ifferent now. 18 MS. DA\IfS: It' s d.if ferent now? 19 THE WITNESS: Sure. 20 MS. DAVfS:. V{trich frees yorr. 2L THE WITNESS: Yes. 22 MS. DAVIS: Tellingr peoB1e frees youi wouLd 23 you agree? 24 THE WITNESS: Sure. I've to1d, countless 25 peopLe urhat has happened. FzuEDMAN, LOMBARDI & OLSON CO.URTREPORTERS 246 1 MS. DAVIS: Which is a benefit to you. 2 THE WITNESS: I'd. like to think that it is. 3 I'm not ttre wound'ed pupBy that r was on SeBtember 4 21st, 2AA!, but I still hawe an awfu]- Lot of shane 5 and trumitiation. 5 MS. DAVIS: But it seerns to be arrogarrce ,1 and pride ttrat brings attorneys d.own. I THE WITNESS: Yorr know, it is. We've all 9 seen a 1ot of that 10 MS. DAVIS: And. truth-telling seerns to save 11 us from L2 THE WITNESS: Right, I 13 MS. DAVIS: from ttrat. L4 THE WITIIESS3 -- f suspect I was gruilty of 15 that, to some extent, ES we1I. I'm not such an idiot 15 t.o think f wasn't. But even then, even t,hen I t'ried' L7 to carrlr myself I'm proud of ttre way I-'m a fanily 18 man, a ded,icated husband. I'm werlr proud of the way 19 I focused myself on my family. I just made a 20 terrib].e mistake, paid for it' dearty 2L Setting ttrat aside, everyttring Irve done is 22 so ttrat, as I sit here now, I can conwince yorr ttrat 23 I'm noL that person, that Lrm worthy of having the 24 privilege of Bracticing Iaw. 25 MS. DAVIS: Any other panel members? FRIEDMAN, LOMBARDI & OLSON COURT REPORTERS 247 L Back to you, Mr. Weiss, 2 MR. UIEISS : Tlrank you . 3 r d.o have a bunch of questions on redirect.. 4 . To some extent, I'm workingr at a 5 disadrrantage because r don,t have General corrnsel,s 6 extribits in front of me, but 7 MS . SMITH: I trawe an extra copy, if you I want. 9 MR. WEISS : I , d, Iowe it, ttrank you . 10 took at page 4L again, if you wou1d, sir. 11 MS. DAVIS: If you could giwe ttre exhibit L2 nr:rnber, wtrich would help those of us wtro are 13 elect,ronics. L4 MR. I4IEISS : f , 11 do my best . L5 THE WfTNESS: It's five 16 MR_ UIEISS: Works for me. L7 MS . DAVIS : Ttrank you. 18 MS. SMITH: Did, you say 41? 19 MR. WEISS: yes, 4L, Florid.a paroLe 2A Commission Investigation. 2L RIDIRECT EXAMINATION 22 BY MR. I^IEISS 23 O. Do you know where they got this 24 information? 25 A. I have no idea- FRIEDM,A.N. LOMBARDI & OLSON COURT REPORTER s 248 1 a. Were you ever accrrsed formaIIy or 2 informa].ly of ]-yingr on a Form 8300? 3 A. Never, ilack, never 4 O. Did Mr. Sonnett ever re1-ay to you any 5 indication that the U.S. Attorneyrs Office felt that 5 you acted inappropriate]-y in fil-Lingr out the Forms 7 8300? 8 A. Never, sir. 9 a. IaIe hawe a1Iud.ed to a Florida Bar ettrics 10 opinion, but let's ignore the Florid.a Bar ethics 11 opinion for the moment. L2 Back in 1993, were you a member of ttre 13 Nationa1. Association of Criminal. Defense Lawyers and L4 the Pl-orida Association of Criminal- Defense Lawyers? 15 A. I\IACDL, for sure. I don't recal1 the FACDL. 15 MR. $IEISS: We'11- refer to N-A-C-D-t as L'l "NACDt, " aJ.I- caps. 18 BY MR. WEISS: 19 O. Do you know if I\IACDL took-a position on 20 compLetel-y fil1ingr out F'orm 8300? 2L A. Of course. 22 Q. And what was their position? 23 A. Position was that, it r,ras confidential and 4 priwiLeged - 25 a. I[as this a controversy that, Lasted for more FRIEDMAN, LOMBARDI & OLSON OURTREPORTERS 249 1 than a few years? 2 A. Yes, it was, sir. 3 A. And do you know how long it was between the 4 time the controversy first arose and the time ttre 5 E 1orida Bar f ina1.1y came d,own with an opinion? 5 Did the controversy arise before the 7 Florid.a Bar opinion? I A. Oh, sure. Oh, yes; of course. 9 a. Did. NACDL and FACDL 1.obby on that opinion? 10 A. Yes, they did. 11 A. I want, you to look at yorrr 2010 return, if t2 you wou]-d., sir. Is t,hat E: 13 Exhibit L4 - L4 How much in toLal tax payments did you 15 make? Look at, Line 72 on the second Bage. 15 A. $19,085. L7 O. Those were timeLy payments? 18 A. Yes. L9 A . Arrd ttren ttre 11, 0 0 0 almost L2 , 0OA on Line 20 76? 2L A. Correct. 22 a. How long after you fiLed this did you pay 23 that, apBroximateJ.y L2, OOO? 24 A. A coupl-e weeks. 25 a. Letrs look at, yogr ?!11 return, tine '12, FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 250 1- Page 2. I'm sorry, the second. PBge, it's actual1y 2 Page L42. 3 How muctr in taxes did You BaY? 4 A. #29 ,331. 5 O. The seventy-forrr eighty-five you ttrat owed, 5 was that su.bsequently Paid? 7 A. It was. I a. Do you hawe any reco1Lection how quick1-y it 9 was paid? 10 A. I d.on' t . But but soon. 11 O. AlL right, sir. L2 While we're on the ?OLO return regarding: 13 ttre Bar e>lpenses, when did you take the Florid'a Bar 14 exEun, sir? 15 A. February 2'l En., ?OLL . 16 O. Took it, in ?OLL? LI Were you incurring e:lpenses preparingr for 18 that Bar exa.m in 2010? 19 A. Yes, sir. 20 o. And did you ineur er 2 You were asked. about the 2'7 , OOA . 3 A. May f just add something? 4 I hired a J.awyer for Maine, as weII. 5 o. Did. that lawyer represent you at the 5 hearing in front of the Maine Bar? 7 A. She did. I A. You were asked aborrt the 527 ,000, sir. If 9 it trrrns out' you owe that, is it your present 10 intention to enter into a time payment BIan? L1_ A. Oh, sure. Of course, absolutely. L2 O. The last t.ime you ent,ered into suctr a pIan, 13 did you abide by it,s terms religiously? L4 A. Ewery .month 15 a. And how long was it, again? A thousand a 15 monttr for one year and then L7 A. A ttrousand. a month for one year, $1,800 per L8 month everlr month after that,. L9 O - $Ihen d.id you f irst gro to trIabitat' for 20 Humanittr? 2L A. First went to Habitat, for Humanity within 22 two weeks after coming home. October would hawe been 23 tlre first two weeks first, week of October, ZOOL. 24 Q. AlL right, sir. 25 Wtren d.id you have rrour conversation with FRTEDMAN. LOMBARDI & OLSON coURTREPORTERS 2s2 1 Doc Schwartz at Boca He].ping Hands? 2 A. Rigrht after the orientation. I'm going to 3 say Februarlr or March, ?OLL. 4 a. Roughly 10 years Later? 5 A. After conring home 5 O. Yes, rough1.y 10 ]rears after you first went 7 to Habitat for Hurnanity? I A. Rigrht . 9 O. Things were somewhat different in those 10 10 years in ?OLL ttran they were in ?OAL? LL A. Heavens, yes. L2 O. Since Febmary the z0trn., 2010, has there 13 been any official imped.iment as opposed to t4 personaL any officiaL impediment to your goingr up L5 t'o Maine, opening up a Iaw practice and practicing 16 securities J-aw up ttrere? L7 A. None. None. f've actua1Ly done some 18 research and. I'm aL]-owed and authorized. to do that. 19 A. And you hawen ' t done that-, why? 20 A. There are. a nrrmber of reasons. Of course, 2L my fam:lIy is trere, a]-though that could. change. 22 A. rs it fair to say yorr're a Floridian? 23 A; I'm a Floridian. I twe been here since 24 L97O, almost a native. 25 A. You were a lawyer for over 20 years before FRTEDMAN. LOMBARDI & OLSON COURTREPORTERS 253 1 you were ind.icted; right? 2 A. Correct. 3 O- Were you ever accused. during that tirne of 4 any mishandJ.ing of client fund.s? 5 A. Newer. 6 A. Ever accused of nr:isrepresentati.on? 7 A- Newer I a. Were you errer sanctioned by any court? 9 A- Newer- 10 O. Were frou errer sued for ma]-pracLice? 11 A. No, sir. L2 a. Since yort'we been out of prison, have lrou 13 been accused of mistrandling any funds? t4 A. Not at al].. 15 . VIEf SS : That , s aJ-l I have, ma , am. L5 MR. LAUIRENCE: ilust a quick follow-up, just t7 talking about trust account,. 18 With regard to t,tre second. superseding t9 indictment back in 1999, it a1.leges that you had, put 20 $145,500 into an account in Boca Bank, is that wtrere 2t your trust account was? 22 THE VIIITNESS: Okay, I don, t have a vivid 23 recolJ.ection, but I'm sure it was. 24 MR. LAViIRENCE: By your testimony, you had 25 BLaced $340,000 or so in your operating accorrnt. FRIEDMAN LOMBARDI & OLSON CO.URTREPORTERS 254 1 THE WITNESS: Yes. 2 MR. LAI{IRENCE: And. if t,here was a shortfal-I 3 with paying these vendors or contractors, I grress you 4 wou1d. have to pay it out of your operating account; 5 is that correct? 5 THE WITNESS: And there was a strortfall, 7 and I did pay it out of my pocket, yes. I MR. LAIaIRENCE : Worrl-d.n ' t ttre bet,ter Bosture 9 hawe been ttrat you place a]-]- the money all ttre 10 monefr in yorr trust account and then take out ttre 11 money as you needed or as ]rou earn it, rather than L2 Brrtting ttre $340,000 in yorrr oBerating account in the 13 first place? L4 THE WITNESS: The Criminal Defense Bar 15 works a little different. You agree on a fee with 16 the c]-ienL, and. in ttris case I had agreed orr a fee of L7 $350,000. Ttrat is your fee that is paid to you 18 Some l-awyers caLL it nonrefundable, I never had, to 19 geu into ttrat tlrI>e of conversation with a client, 20 never trad. an issue with them. But criminaL defense 2t lawyers, esBecially wtren they deaL wittr that t14re of 22 case, are Baid. uB front. 23 MR. LAITIRENCE: In fact, did. you have a 4 written agreement wittr tur. Kramer? 25 THE WITIUESS : No, and it ' s not required . FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 255 1 MR. LAIIIRENCE: Okay. BuL if you l.ad. a 2 written agreement, ttren ]rou would. put "nonrefund.able 3 retainer" in there, and then ]rou would be entitled to 4 But it in .your operating account wersus your trust 5 accorrnt, tlrat's the ethical 6 MR. vIEf SS : Mr. Lawrence, with all due 7 respect, f don't think you'we quite stated. ttre I Florid.a Bar's posit,ion on that matter correctJ.y. So 9 with al-l due respects and apoJ.ogies, I'm going to 10 trawe to obj ect to th: quest,ion. 11 MR. LAhIRENCE: Go ahead., sir. L2 He ' s prrt his obj ection f or the record.. 13 THE IIIITNESS 3 No, I I1o, I I L4 respectfully don' .t, agree, sir. L5 MR. LAVIIRENCE: I have no furt,her questions. 15 MS. DAIIIS: Anyone? L7 I beliewe Mr. Fergruson,s time as a witness 18 is 19 MR. ITIEf SS : We rest - 0 MS. SMITH: I do not have any rebuttal. 1 MS. DAVIS: Ttrank you, that , s so tre].pfuL. 2 (Witness stepped. down. ) 3 MS. SMITH: And ltm ready to close. 4 I trave some case law ttrat Irm going to 25 d.iscuss. FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 256 1 As to the matter of wtrettrer or not ttrese 2 specifications are proven, the app]'icant lras adnitted. 3 each of the specifications, wittr ttre exception of 4 3 (A) . But even thougtr they are adnitted, f want to 5 briefly address 1 (B) 6 There has been some reference to ttre ctrange 7 in the ].aw since the apBlicant was prosecuted for 8 taking the money as a lega1 fee, and I want to point, 9 orrt ttre specification alleges that ttre applicant was 10 indicted. and that he.pred guilty and' ttrat he was 11 sentenced, which is a].l true and adnitted.. So the L2 fact that the law tras or may have changed with L3 respect to the underlying matter of wtrether you carr L4 aicept t}.e at,torney's fees that is, you know, from 15 misgruided fund,s, ttrat d.oes not mean that the 15 specification is not proverr. L7 Also, keep in mind ttrat the cond,uct in 1(B) . 18 is not wlrat the applicant went to prison for. He 19 went to prison for the falsifying of the affidawits 20 and the d.elivering of the castr.. So ttrose are not ttre 2L most sigrnif icant allegations in 1(B) , but they are 2 st,ill proven in ligrht of the case Iaw that Mr. Weiss 23 has Bointed out to you. 4 Specif icaLion 3 (A) was not a&nit,ted . The 25 applicant alleges ttrat he time]-y filed and, ttre IRS FRTEDMAN LOMBARDI & OLSON COURTREPORTERS 257 l_ mad.e a mist,ake and noted. ttrat they got it 28 days 2 af ter the d.ead.Iine. Ttrat' s for you a1.l to determine 3 wtrether you aJ-J. find ttrat to be a reasonabl.e 4 e:rgrJ.anation. The tax returns seem to ttre tax 5 records/transcripts seern to ref1.ect. that, tl.e IRS sees 5 them as filed untimely, ttre app1.icant admit,ted, that 7 and. ttrat his penaJ-ty was not owerturned. fn fact, tre 8 indicated he d.idn'L even go to ttrem with it, as art 9 issue. So I submit' that ttre specif ication is Broven, 10 based upon the records. So all of ttre specifications 11 are Broverl . L2 And I d.on't think there is arry question 13 that t^he conduct in Specification 1 is disqualifying, L4 given the nature of ttre acts cornmitted and the Bar 15 discipline that resulted. from the conduct in L6 Specification 1. And, wtren the Supreme Court granted, L7 the applicant's petition for disciplinaqir 18 resigmation, it sBecified tbat ttre resigmat'ion was 19 t,ant,amount to disbament. And that,'s-.not specific to 20 Mr. Ferg-uson, that's.ttre Law with respect to aLL 2L individuals who resigm in lieu of d.isbarment or in 22 Iieu of discipline. 23 I provided you with the LHH case that, s 24 "Lr' trllr as in Henry, ,'Ht as in Henry. This was a 25 d,isbarred. atto:rney who was seeking readmission to ttre FRTEDMAN LOMBARDI & OLSON C O U RT REPORTERS 258 1 F]-orida Bar. Ttre Board recommend.ed ttrat his 2 app1.icant be denied. And when ttre SuBrelne'Court 3 ewaluated the case, ttre Court said' - - and I ' ve 4 highligtrted. ttre langruage for you that ilm going to be 5 t'a3-king about in ttrese cases but ttre Court noted 5 that tHH had a heanrt burden of establistring his 't rehabi]-itation because disbarment alone is 8 d,isqualifying, unless ttre applicant can show clear 9 and conwincing ewidence of retrabilitation, So ttrere 10 is no question ttrat you hawe disqualifying conduct 11 before you. L2 SBecification 3 talks about ttre payment of 13 the taxes. I gave you t'tre Marks d.ecision, wtrictr is a L4 2OO7 case from th.e SuBrerrre Court t Now, Marks had a 15 mrrlt,itude of issues, not al1. of which are before you, 15 so the facts are not on point with resBect to L'I errerlfthing. However, orle of ttre issues that Marks 18 trad was a fai]-ure to pay tris taxes for several- years. 19 Agd. t}.e Board, at Marks' hearing, detemined. ttrat his 20 failure to Bay tris taxes was not disqualifying issues. Marks had r 1 because he had some financial 22 testified that, his daughter was in college and tre had. ,2 3 to make a decision about paying his taxes and 4 basically iLl-ustrated indicated he wasnrt abJ-e to 25 pay. FRIEDMAN. LOMBARDI & OLSON cou R T R E P O RT E R S 259 1 Wtren the Supreme Court looked, at that i' 2 particuJ-ar issue, the Court d.isapproved. of the. 3 board's f inding that ttrat cond,uct was not 4 disqualifying and found it to be bot}. ind.iwidually 5 and. col1.ective1-y disqualifying, as stated. on Bage 6 I t,hink it ' s Page 3 of the opinion. f t says t,hat 7 ttrey ind,icated. that Mr. Marks trad, noL onry f aiIed to I show retrabilit,ation, but actua]-].y d.emonstrated. a 9 failure to correct past miscond.rrct and, a continuing 10 corrrse of misconduct- 1l- Now, I wilJ. tel1 you Marks had outstanding L2 tax obligrations at the time ttrat he appeared before 13 ttre Board that lre trad. not made anlr patments on and so L4 th.e Court consid,ered ttrat ongoing misconduct. 15 Ttre aBplicant has Baid his taxes with 16 respect to the overdue taxes with the liens, all but L7 ttre L997 taxes whictr he is disput,ing. So t,here nay 18 be some mitiga.ting ewidence t,trere, but the conduct is 19 certainJ-y disqrralifying, based upon wlrat the Court 20 has told us about Baying of taxes, especial.ly in 2L ligrht of the fact that the applicant ind.icates that 22 he prioritized other thingrs over the paying of his 23 taxes, complying with the I.aw. And not t,o say that 24 those ttrings are not important, but when youtre 25 talking about practicing Iaw, beingr an attorney, I FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 260 1 submit to you that there is a higher standard ttrere 2 and to priorit.ize making ctraritabLe donations over 3 comBlying with the law, I srrbmit to you that' that,' s 4 not appropriate. t'W, r' 5 I've also prowided you the lilHlID case, 5 rrvrr Victor, rrDrr David, ttlltr decision. This decision 7 is conunonly ciued for the BroBosition ttrat ttre Court I tells us' ttrat in evaluating an applicant' s showing of 9 rehabi].itation, we hawe to consider the nature of ttre 10 Bast misconduct. The Court expounded upon that idea 11 ttrat it laid. out in lrIIrVD by subsequentltr sayingr that L2 ttre more serious ttre misconduct, the more 13 rehabiliuauion you wi)-l have to show in ord,er to meet t4 the clear and. conwincing standard, and ttrat the 15 disbarred. attorney tras a hearrtr.burden to begin with. 15 So I would submit, based on ttrat L7 background, ttrat there is going to be a sigrnificant 18 amorrnt of rehabilitation ttrat tras to be denronstrated. 19 I a1-so subrnit, to you that there are a-..nurnber of 2A aggrravating factors to be considered here. This is 2L not any attorney who cornuritted. Lhis misconduct, he 22 was a criminal d.efense attorney who knowingly 23 falsified affidavits, knowing that ttrose affid.avits '24 wou1d. possibly be used in court. He is a fo:cmer U.S. I 25 att,orney. Look at the investigatiwe hearing F'RIEDMAN, LOMEABDI & OLSON c OURTREPORTERS 26L L transcript, he acknowledged that he had also worked. 2 with ttre DEL on drug cases. So tre absolutely knew 3 better. This was not somebody wtro fell in a trap and 4 made a mistake. He knew absoJ.utely what he was 5 doing. 5 He's also admitted that he knew that Baying 7 his taxes after ttre Apri1- 15th deadl.ine worrld not I comply with the Iaw and tre's d.one ttrat over the 9 yedrs, &s alleged in Specification 3 (B) . 10 Now, the appLicant tras, in an effort to 11 d.emonstrate tris rehabilitation, submitted some L2 ctraracter erriderrce. He has several ]-etters, a few of 13 those were deposition witltesses. f wanted to point L4 orrt ttrat most of .these lett,ers, Lf not alL of ttreru, 15 reference knowledge of his past miscond,uct while he 15 was a member of Lhe Bari however, of al-I the L7 d.eBositions and the Ietters,. ttrere was only one 18 witness and I believe it was Mr. Hirsctr and 1,9 tlris is based upon my rewiew of the file, you rely on 20 your own review. But wtrat I noted was Mr. Hirsctr was 2L the only witness who indicated that he had knowledge 22 of there being any tax issues. So it.'s not c].ear 23 that alJ. of the witnesses are fuL1y aware of the 24 misconduct,. 25 Mr. Gucciardo testified this morning about FRIEDMAN LOMBARDI & OLSON COURTREPORT€RS 262 1 the app1icant and he ind.icated tl.at he was aware that 2 ttrere were some issues, but he d.idn't, know what the 3 issues were. 4 I prowid,ed you with ttre MLB decision, which 5 is a case from ttre SuBreme Court, Year 2000. In that 5 case, the apBlicant attempted to prowe lris 7 retrabilitation by submitting letters and affid.avits I from indiwiduals recommending his admission. And 9 ttren on page four of that opinion, the Court told us 10 that tlrey says "It is important for ttrose 11 attesting to an app1icant's moral character to be L2 aware of tris or her Bast miscond.uct. Recommend.ations 13 from ttrose wtro are uriraware of it may be griven ]-ess L4 weigrht - " 15 So .alttrougtr t,Lre applicant Lras submitted a 15 nurnber of character letters, I would. suggrest to you L7 ttrat trou strould. just consider ttre weight ttrat you L8 want Lo giwe ttrese letters and. testimony, in light of 19 ttre gruid,ance in MLB 20 The apBlicant's also submitted some 2L evid.ence of comrnunity service with respect to his 22 work wiuh Habitat, for Humanity and Boca HelBing 23 Hands, but the applicant has prowid,ed. a sigmificant 24 .number of these hours via his service logrs which he 25 created on his own. And as you know, the Supreme FRIEDMAN. LOMBARDI & OLSON COURT REPORTERS 263 1 Court requires that community service be documented.. 2 And they tord us that in the irolln Doe d.ecision, which 3 I prowided you, it is also a 20OO case. On the lasL 4 page of that opinion, the Court tras said, that mere 5 stat,ement, of positiwe act,s without supporting 5 docurnentation is not sufficient to d,emonstrate clear 7 and conwincing evidence of retrabilitation. 8 Now they d.on't t,eIl rrs what ,docr:.mentation,' 9 means, but iu tras been interBreted t,o mean that there 10 has to be some third-party verification- So I wouLd 11 submit . ttrat on that, basis, ttre aBplicant, s L2 se1.f-generated Logs wou1d. not be sufficient 13 documentation L4 I wouLd. aLso refer or submit, that t,trere has 15 .oeen very little werification provided regarding the 15 amount of time the appricant has d.edicated. to these L7 organizations. our record,s contain two letters from 18 Habitat for Humanity, I think that,'s Applicant's 19 Exhibit 10 and, Appricant's Exhibit 12_ contains retter 20 from ilohn She1ley. Mr. Shelley d.oesn't quantify the 2L nr.rrnber of hours with Habitat for llumanity, and. 22 Mr. E.erguson admitted that he d,oesn't have anything 23 to quant,ify ttrat 24 Ttre d,ocunent,ed. se:rrice ttrat I noted 25 again, based. on my review, and you should rely on FRIEDMAN LOMBARDI & OLSON COURTREPORTE RS 264 1 your owrr recollection is 37 6 -36 horrrs .with llelping 2 Ilands, and that, was based on the testimony of 3 Ms. Szalobryt. That was also werified somewhat 4 througtr tris daughter's testimony when stre ind.icat,ed 5 ttrat stre trad worked. ttrere with l.im on a few 5 occasaons. 7 He's also got L7 blood. donations and. I speaking at ttre Professional Responsibilit!, corrrse. 9 He' s a].so document,ed. that he's donated money to 10 seweral ctraritable orgranizations. I only bringr ttris 11 up because I want to point out to you that the L2 Srrpreme Court has described. for us the ttrpe of 13 serwice t}.at it .consid.ers to be good ewid.ence of L4 rehabilitation. ..+nd tl.ey give us Lhat langruage in 15 ttre MtB decision, and they tell us I wonrt gro 16 ttrrougll and read ttre fuII langruage from ttrere. But L7 w}.en describing t,tre tlE>e of work that the Court likes 18 t,o see, ttrey use the word.s: "Volrrnteering, workingr, 19 substantial involwement. " Based on the tLpe of 20 act.ivities that theylre ta].king about in t}.at 2L Langruage and the use of those words, I'I1 submit t,o 22 you that donating money does not, meet the definition 23 ttrat the Court is providing. 24 So the question is: Is the d.ocumented 25 service enough to overcome the most serious FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 265 1 miscondrrct that has been comrnitted? And in 2 det,ermining that, you have Lo ask yourse]-f if the 3 aBpJ.icant can deuronstrate rehabi1.itation from tris 4 past misconduct, if he's continued, to engage in 5 miscondrrct re1.ated to his taxes as most, recentl-y as 5 2OL2 wlren tre faiJ.ed. to pay tris ?OLL taxes on t,ime. 7 Ru19 3-13 reqrrires clear and convincing 8 evidence of personal assurances and. supBort,ed by 9 corroborating evidence of an applicant's intent, to 10 conduct himself in an exemp]-ary fastrion. 11 Is ttre applicant's conduct with resBect to L2 his taxes a demonstration of exemplarryr conduct? I 13 submit to you ttrat it is not,. And if the aBplicant L4 has not conducted trimse]-f in an exemplary fastrion, I 15 submit to you ttrat you should consider the probatiwe 15 wa]-ue of ttre d,o you have the probatiwe evidence to L7 corroborate ttre assurances tl.at he has given you. 18 MS. DAVIS : It ' s a Iitt,le unusuaL, but 19 we t re taking a tLrree-mirrrrte brake 20 ' Thank you. 2t (Recess taken. ) 22 S. DAVIS: Mr. WEiSS 23 MR. WEISS: Thank you. 24 MS . DAVIS : Sorr-lr for the interruption. 25 Now it's your turn. FRIEDMAN, LOMBARDI & OLSON COURT REPORTERS 266 l_ MR. WEf SS : AJ-t'hough ttre mowement to 2 Bermanently bar all d.isbarred or felony convicted' 3 lawyers was shot dowzr or was not successfrrl, I feel 4 we're almost accomplishing ttre same thingr by sett'ing 5 ttre bar higtrer and, higher demandingr virtual 5 Berfection from anybody who has had probLems in t,tre 7 past in making a showing of rehabilitation of such I magnitude ttrat Berhaps it ' s becoming a ruse. I trope 9 ttrat is not what we're starting to look at now. 10 No human being is ever going to be able to 11 come before you traving l-ed. a perfect Iife. There was L2 one individual who accomplistred that and tre got 13 crucified. I don't think there tras been anybody L4 since. I hoBe thqt, we are not in ttre process of 15 seeking such perfection wl.en somebod.y comes before us 16 ttrat it makes it easy to safrs "WeIl, not this time- t7 Come back again." Or: trWerre not saying never, but 18 never. " I lrope ttrat ' s not wtrere we're going. 19 As I've said in virtua1.ly eyery closing 20 with a disbarred. lawyer and wiLl Brobably say in 2L everfr one in the futrrre, it's the nature of these 22 proceedings to focus on ttre negative to ttre exclusion 23 of the positive. This entire day has basically been 24 focused on a nine-month period in a 57-year-oLd,'s 25 Life, aLmost to the exclusion of the good life that FRIEDMAN, LOMBARDI & OLSON coURTREPORTERS 257 L was led before 1993 and certainly wittr, I fear, 2 Iitt1e regard for tlre life ttrat's been led. since 3 1993. f ask you not to says "Ttre only ttring I'm 4 groingr to look at are ttre felonies and, wtrat he, s d.one 5 since ttren cannot .possibly overcome that nine 5 months. " You're looking at the individ.ual before you 7 t,oday, you're looking at. the Berson ttrat is before 8 you today. His punishment is over his Bunishment 9 is over. 10 He was a good persorr wtro mad.e some bad 11 mist,akes. He' s been a good person, Ied. a good 1ife L2 since Lgg4 I I 11 sa1, iL was easy to live a good 13 l.ife from Augrust of ' 99 to September of ' 01. But L4 since September o.f ' OL, you've seen somebody that the 15 on1-y blemish on tris scutcheon is the inabiLity to pay L6 a]-L of his taxes L7 Now, I submit to you tlrat the Board, of Bar L8 Examiners is not an ann of the IRS. I submit to yorr L9 that, the Supreme Court has not said that the mere 20 fai]-ure to patr t,axes in and of itself is 2t disgualifying. What they've talked about is f 22 think you'lI see an overriding theme is a 23 disregard for resBonsibilities in that sense. 24 We lrawe a gent1.clman'here wtro tras stroum you, 25 as to taxei, that it was he, in 2003, ltrat went to FRTEDMAN LOMBARDI & OLSON COPRTREPORTERS 258 1 ttre IRS. It, was..he, in Decernber of 2003, who entered 2 into arr agreement and tre abided by that' agreement. 3 Now, yes; tre hasn't Baid all of his taxes timeJ-y, but 4 he' s made substanti-aI dents in his taxes every year, 5 except for Ltrat awful Beriod, '94, '95 --'94, '95, 5 ' 9 5 wtren, basical-ty, he wasn' t working - 7 We Lrawe an individual who tras filed his tax I retrrrn time]-y every year wiUh one Bossible exceBtion, 9 1996. I submit to you that does it really make L0 of ,, 18 years in front of us, ttrat sense ttrat out | 1L tre would just aII of a sudd.en say3 "You know, I L2 think I'm going to ctreat this year and not file it on 13 time" ? No, of course not . Maybe ttre IRS screwed' up. L4 inconceivable, but, perhaps they screwed I know ttrat' s . 15 rrp. Regard.less, there have been no criminal 15 al.J.egations against my cJ-ient regrarding tr'is palmrent, L7 or reportingr of his taxes. We're ta1king, Ert worst, 18 civi1 offenses. L9 Let's ].ook at wtrat he did wrong. My client 20 tras not^ denied it. My client tras acceBted. 2t responsibility for his wrongd.oing. My client, has not 2 bl-amed. anybody else for tris wrongd.oing. I'm not sure 23 that Mr. Sonnett was wrong in his d.eclaration that it 4 trad, nothing to do with being a lawyer. We're not 25 taking that tack, but look at the two crirres that tre FRIEDMAN LOMBARDI & OLSON c OURTREPORTERS 259 l_ was f irst charged, with. ,'False notarization. " 2 Did:e't' have t,o be a J-awyer to obstrrrct justice in 3 tbat regard. It wasn't his cLients, he received no 4 fees for it; stil1 felonous. 5 And then d,elivering $75,000 to a non-client 6 for no fee; still feLonous, but not in his capacity 7 as a lanryer. I Would, he have gone to jait, trad. he not been 9 a l.awyer? Yes - 10 would, he have been d.isbarred., had he not 11 been a lanqrer? Of course not. L2 The only point I'm making trere, and. maybe 13 Irm owerelaborat,ing, I don't, think Mr. Sonnett was L4 comBleteltr of f base wtren tre took. that position wittr 15 the Bar - Regardlgss, those two felonies', my client 15 has readi1.y acknowJ.edged to having committed, did L7 wrong, and. why he did it. And and. these are not 18 good ttringrs, I acknowledge that 19 He knew ttrat those affid,awits -- which he 20 did.n't, Brepare or certainly as to Mr. Ackerman, ZL contained. informat,ion that, was false, should.n't have 22 sigrned. Knew he shouldn,t, trawe taken the Z5,OO0 23 d,one. The reason why I,m elaborat,ing on those, my 24 client, until they final.ly wore him d,ovm, ttrough 25 protested .tris innocence on the 490,000 or the FzuEDMAN. LOMBARDI & OLSON COURTREPORTERS 270 1 565,000, whichever it is. 2 And fina].ly, the dea]- that he got fiwe 3 years probation. There were no allegat,ions of 4 wrongrdoing with the Form 8300. Ttre opinion that I've 5 strown you was issued subsequent to the actual 5 conduct, but it ratified the position that he was 7 t'aking in '93 t}.at it was Briwileged- The reciBient I of frrnds and for whose benefit frou were gettingr was 9 deemed by NACDL and FACDT and at least by many 10 within the Bar until the opinion came down as 11 being priwileged as was it. the Last Link Doctrine? L2 I'm not a criminal defense lawyer, but I think that's 13 wtrat it is, the Last Link. If ttre declaration wouLd' L4 be the 1-ink to the client for wrongdoing, the law;yer l_5 corrld' claim ttre privilege. Ttrat' s wtrlr it took almost' 16 two years to resolve those cases L7 It's not so much that ttre Iaw has ctranged' . 18 with Vel-ez as the Courts have finaLLy acknowLedged l_9 ttrat ttre law was being interBreted ulrgnstr, that in 20 fact ttrere was a safe lrarbor for receiBt of fees for 2L t'h,e purBose of def ending someone. But, YoE know, in 2 the end. it d.oesn't matt,er because my ctient B]-ed 23 gruilty to iu and my client did get five years 4 probation for it. 25 Spec 2. Actual.J'y -- and. that d'ea1s wit'h FRIEDMAN. LOMBARDI & OLSON co URTREPORTERS 27L L the Bar proceedings. There are actually some grood. 2 things in here, from our perspective. My client 3 started. shutting down his practice as soon as he 4 learned. Lre was a target. rs that not the first step 5 toward.s retrabilitationa 5 My client, vrtren tre entered into the plea 7 agreement, which was ttrree weeks af ter tre was I charged is ttrat not. a step towards rehabilitation, 9 also, irmned,iateJ.y acknowJ.edging? 10 He agreed. to an immediate susBension from 11 the Florid6. Bar. r submit research on the law back L2 then wouI.d show that wittrout an adjud,icat,ion of 13 g'uiIt, ttrere was no grounds for an immed.iate L4 suspension of my client,. Didn't.quibble over it, 15 immediately stopped the pract,ice of 1aw. L6 The judgrnent and convict,ion actually wasn,t, L7 until four ]rears later, that's t1.e start of 18 rehabilitation right th.en, in .fune of '95 when he was L9 ctrarged,. substantial cooBeration with the gowernment 20 deLayed. his sentencing, delayed, tris going to jail. 2L It's kind of ironic. perhaps if he hadn't agreed, to 22 cooperate with ttre government and help them in their 23 prosecution of Abbell and. tagrur", .ttren he wourd have 24 been out of jail four years earLier. sometimes what 25 seerns good, in ret,rospect might not be such a good FRIEDMAN, LOMBARDI & OLSON COURTREPORTER s 272 1 t}.ing. 2 The tax issues r know are troubl-ing to You, 3 but I ask you to focus not on what he didn't Bay, but 4 how he handl-ed his taxes. There was not 5 irresponsibility lrere. As I said' before: Timely 6 filed, truthful statements, taxes paid. to the best of 't his abil.ity to do so. And in zOLg and' ?OLL, we're 8 seeing the majority of the taxes were Baid. 9 Now, were ttrere tax l-iens? Oh, yeatr oh, 10 1.eah. There was a $380 tax lien for 1985. s386 for 11 1995 if r said '86, r missBoke, '96- Then ttre L2 $85,000 for a bunclr of years. But how did my client 13 trandle it? He didn't hope it would go away, he L4 f il-e f or bankruptcy. And I stil-I unclear d.idn' t . 'm L5 wlren you can d.ischargle back taxes and' when you canrt, r-5 ilve run into it bottr ways. Rather than fiLingr for L7 bankruptcy, which strows f inancia]- resBonsibility, I 18 sulmit, to you, he goes to the IRS and says: "tet's 19 work iU out. " 20 Shoul-d ml, c]-ient have been paying more 2L money towards his taxes rather ttran donating $38 a 22 month to ilose De Brito? Should he have been apBLying 23 that $38 to AT&T? WeLL, You know, someLine ].ook 24 at $38 a month towards AT1&T or $38 towards your taxes 25 versus $38 t,owards irose De Brito, and' maybe tl.e thing FzuEDMAN, LQMBARDI & OLSON COURT REPORTERS 273 1 is: "I want to help a kid a little bit - " 2 Hel.ping his church up in Ind,iana, that is a 3 charitable endeavor, and sometimes we do things 4 because we just want to trelB peoBle, heIB others. 5 Wtri3.e lre was doing this, he wasn,t igrroring 5 his obligations to ttre rRS. 7 AT&T, he's protesting. Ttre IRS, at ttre I current, time, he's protesting. And you know, 9 sometimes you have to sit back and. say: "Wtrat the 10 heck wittr the IRS.'' For two years, tre thinks he's 11 finally out from under them. And then out of ttre L2 blue, as tre reported to ttre Board of Bar Exarnr-ners 13 prompt3-y, t,hey say3 "April Fool-s . We didn' t realJ-y L4 mean to discharge you. We d,id,n't reaIly mean to fiJ.e 15 that, please, and now we want another $86,000.' 15 IIe protests and. they come back: "We11, ure L7 reaJ.ly want $27,000." And maybe some of y'all have 18 been able figure it out, brrt lookingr at ttre papers, 19 there doesn't seern to be any rationa1-g between the 20 $87,000 and the $27,0OO or hoiry he got ttrere. Arrd 2L he's working with it rroer, that's what we've got to 22 d,o. 23 All rigrht. The conduct before you, at 24 Least as counts one and two or specs one and, two, is 25 disqualifyingr no d,oubt, about it; we stipulate to FRIEDMAN LOMBARDI & OLSON COURT REPORTERS 274 l_ it, we've admitted it. That's why rehabilitation is 2 so imBortant, and f submit we hawe met the higrh 3 burden on his retrabilitation. 4 I have to point out one thing, I don't know 5 whether "ironic" is ttre right word or not. If ttre 6 State of Maine trad denied my client, that would be a 7 seBarate spec before us today. Becanrse denial of I admission in another state is grounds for 9 sBecification. Why isn't the flip trrre? Why isn't 10 the fact that he's been admitted to Maine a rrerfr 11 important consideration to you? And I throw that out L2 rhetorica3-J-y becamse I d.on't know the answer, the l-3 f ive of you do the f iwe of you -do know the answer L4 to that, because .it ' s your decision. L5 Corroboration of time, corroboration of 16 time. Ttre SuBrene Court has not said., at least to my L7 knowled.ge and Ms. Smith is more on top of this 18 kind of thing than I Eurr, but I d.on' t think t,he L9 Supreme Court has ever saids "We will not'acceBt an 20 hour unLess it ' s docr:.nented. " 2L Wtrat ttrey hawe said is: "We want 22 corroboration of it. " And. we have corroboration of 23 eveqirt,tringi we 've done . We 've got my client ' s logrs 24 and. tris retrab statement with Habitat for Humanitrr. 25 We've got, Mr. ShelLey's letter saying lre was there FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 27s 1 referring to my client almost everfr Sund.ay. We,we 2 got NicoLe's testimony that at l-east tre went out, 3 there on one day, because she was complaining about 4 it. We trave Brad.'s testimony and, I,m sayingr 5 "Bradto because I just hawe troub1.e with his last 5 na,me that he was aware back Ln 2002 that, my client 7 was going to Ilabitat for llumanity. My client tras I testified roughly -- I beJ.ieve it. was 540 hours. If 9 you 1.ook at those Iogs, if you take in effect Lhat he 10 was Brobably there four to fiwe hours nearly every 11 Sund,ay for a five-year period, that seens a verfr L2 reasonable arnount of time. And tris work at Habitat' 13 for Hr:nanity is corroborated by three Beop1e, L4 Strel-Iey, Brarl anq.my client -- my client is a 15 Beople he's got the contemporaneous logs showingr L6 ir. L7 Boca HelBing llands. You know, there comes 18 a point wtren we t we just got to ctroB of f wtrat ewid,ence L9 we can present to you. The 1ady who grave the 20 deposition who is from PoLand g'ave us a sBecific 2L time. My client's addition to that is reasonable 22 when you consid,er that tre ! s been working five to f iwe 23 and a half hours every Saturd,ay since she testified 24 on I believe it was Febnrary 19th. She was 25 specific in her testimony. And. my client,s testimoay FRIEDMAN, LOMBARDI & OLSON COURT R E P O R T E. R S 275 1 as to ttre ad.ditional horrrs is wery, very logical. 2 Arrd just I missed a point on ttre liens. 3 Ttre liens against my client were released they 4 were released. I submit to you that ttrat, shows 5 resBonsibility in trandlingr his obligations to the 5 IRS. 7 f question the applicability .of argrurrent I ttrat the character letters and the character evid.ence 9 is not credible because they d.on't ind.icate they know 10 everything ttrat's going on. All witnesses who 11 t'estif ied trawe seen tlre specs. Most of ttre L2 witnesses' letters alIude to discussions with my 13 client. And certainly if the criminal offenses and L4 t'tre disbarment ar.e what is most serious, is it really 15 fair to say ttrat they're giving faworabLe opinions 15 knowing ttrat and they're a1l of a sud.den going to L7 change ttreir opinion if they know there are some tax 18 Broblems? I submit that's not the case at all. 19 We have no less ttran 10 lanryrers and, I'm 0 exc1uding Nicole here, altl.ough she is a lawyer, but 2L I think stte's more a l-oving daughter 10 lawlrers 22 wtro are q$)ressing: incred.ible support, for my cLient. 23 We trave individuals such as Scott Hirsch and. 4 Apot,heker talking about my client as being a mentor, 25 as somebody who ttrey want to emulate, to mo1d. FRIEDMAN LOMBARDI & OLSON COURT R E P O RT E R 5 277 L ttremselves uBon. This is somebody they're talking 2 about ttrat they know is a conwicted fe]-on. Does ttrat, 3 not bespeak of rehabilitation? Would. they want to 4 trawe mo]-d.ed ttremsel-ves after the Don Fergruson in 5 1993? T don't think so. But the Don I'erlruson in ttre 5 late 2000s, ttre lat,e doub].e-aughts, I gx,ress we're 7 cal]-ing it now, and ttre early two-ttrousand-teens is a 8 d,ifferent person, somebod.]r worthy of admiration, 9 somebody worthy of moJ.d.ing yourself af ter. 10 I ask you to look at Mr. Rosent,tral ' s 11 letter . T gruess tre's rea1-Iy ttre only witness we hawe LZ who compares ttre o1d Don and ttre new Don, in terms of 13 standingr in ttr,e conununity. He had. arr excellent L4 reputation until ,lurre of '95 'and has art excellent 15 reputation since he's been out of jail. I ask you to 16 look at Mr. Rosenttral's ].et'ter c]-ose].y. L7 ff ttrere was ever a heartfelt 1etter that 18 you've seen, I suspect yorr're going to see it from L9 Mr. Apotheker once again, if I tm salring that, 20 right - 21 We have Ms. frou know, Don, what, is wrong 22 with names like smith antl Rodrigruez? Your probation 23 officer. 24 MR. FERGUSON: Marisa Guthei].. 25 MR. ITIEISS : Yes, Marisa. We trave her in a FzuEDMAN, LOMBABDI & OLSON COURTREPOBTERS 278 1- letter to Mr. Stephells, back when she was still his_ 2 officer, lauding my client and. alluding to his trrre 3 renorse. This is not something that tras been 4 inwented over the last couple ttrree years - She was 5 referring to tris remorse and ind'irect1-y to his 5 rehabilitation and to his comrnunity work back wlren he 7 was first being interviewed by Mr. Stephens in a I status report that I gn:tess probation grives to 9 potential employers. 10 Mr . Mineau - Mr . Mineau came in trere tod.ay, 11 he ' s not a ]-aw3rer. Probably, Mr. Mineau knows my L2 c]-ient as well as anybody for 30 years. This is a 13 probation officer coming in and attesting for my L4 c1.ient, somebody a.I.most part of the prosecrrtion 15 almost part of ttre prosecrrtion. 15 Mayor Genco, stre's attestingr to his L7 ctraracter in a public proceeding. Stre knows trim 18 well- 19 Mr. Ili].l-'s testimonlr, although limited, t 20 submit to you is important because it shows not onJ-y 2L an att,enpt, to comply with the tax laws in the sense 22 tlrat he's conservative with tris deductions, but if 23 there is anybody who is going to know if somebody is 4 a financial cheat or financiaLLy irresponsible, it's 25 groing to be his CPA. I consider CPAs verfr va].uab].e FRTEDMAN, LOMBARDI & OLSON co u RTR'EPORTERS 2'7 9 1 witnesses in that regard 2 Mr. Biltingrsley, a long-terur banker and a 3 friend. Ttrese are a]-l individuals wtro know mtr cl_ierit 4 a J-ot better ttran any of the f iwe of yorr do. Now 5 they hawe a d.ifferent burden in their rife, but t}.ey 5 know him weIl. To some extent, I submi.t you must 7 defer to these opinions of Beopre who trawe known him I for 10 years or more 9 Let , s look at, the points t}.at we r re J.ooking L0 at today- Ttrere real1.y are criteria, strict 11 compliance with, basically, the rules required. of 1-2 him and we've got ttrat covered.: No wioJ.ation of 13 Brobation, Ms. Gutheil , s letter, to some extent. No t4 allegations of UPL. Ttre testimony in both 1etters L5 and live, as my client tras religiously comp1-ied with 15 ttre Bar' s rules on suspend,ed and disbarred. lawyers. Lt Uni-rnpeachabl-e character and moral. standard. 18 Got thaL cowered from 10 lawyers , E'ro* 'Mr. Struster, 19 who is not, a lawyer, a para].egal; frogr Mayor Gencoi 20 Mr, BiLlings1ey, a neighbor; Giacobba, and 2L Mr. Mineanr. 22 od, reputation for professional ability. 23 ilust, the fact that Brad. wanted. trim to come to work 24 for the firm, in and. of it,self , I submit covers that; 25 but we trave other testilmony. FRIEDMAN. LOMBARDI & OLSON COURTREPORTERS 280 1 Lack of ma]-ice and ilI wi]-l. Has that ever 2 not been cowered? Has anybody ewer come in here and. 3 saids "I ho]-d ma]-ice and iII will toward. the 4 prosecuting authority" ? But arur$ray, it ' s there and. 5 we covered it,. 6 Habit,at for Humanit]r, f iwe years , 640 "t lrour.s - I Boca Helping Hand.s , 44O trorrrs. 9 Christian Assenrbly Ctrurctr. Now I recognize 10 t,trat nobody realIy giwes comrrunity service cred.it to 1l_ frour own ctnrrctr and I'm in fuII accord. with ttrat'. we L2 strould go to our own church. It's kind of like what l_3 ttrey said of the PTR opinion in I think it was L4 L997 wh.ich, by the wEy, I think is ttre last 15 published opinion where ttre Supreme Court owerru1-ed a 15 board denia1 , L997 , I think that was ttre ].ast one. L7 But at PTR, they said sometlring to the 18 ef fect of : 'rTaking your daugtrter to swimming c1-ass L9 or taking trer swimming doesn't count as courmunity 20 serwice." We all see where they're coming from 2L there. 2 Going to your church, working with your own 3 ctrurch, that's wtrat we do or your temple or your 4 parish, as the case may be. But the Hobart,, Ind.iana 25 churctr is a different critter, that's helping a smaII FRIEDMAN, LOMBARDI & OLSON COURTREPORTERS 281 1 Barish or a smalJ- churctr that my client d.oesn,t go t,o 2 and it's l.elping Beop1-e. A smal1- ctrurch is 3 sometimes I mea.n, I grew uB going to a mission in 4 Tituswille, F1.orida. Sometimes a few bucks can be 5 big to a srnaJ-I. congregat'ion. 5 So as part of ttre character of my client, I 7 point to ttrat. Yes, it' s not couununity setrrrice as 8 d.efined by ttre Court 1.ike Guard.ian Ad Litem, but it. 9 strows my client' s character. : 10 Giving blood, ttrat just strows Bart of my 11 cLient's character. Going and co]-lectingr turkeys. at' L2 Ttranksgiwing, it, shows part of my client's character. 13 Is it "community service?" I don't hnow. I d,on't L4 know. But' I think we've got that covered. wiUh Boca L5 HeJ.ping Hands, arrymay. I think we 've got, that 15 cowered wittr Habitat for Humanitl'. But it shows my L7 cLient is a good. person, and. that goes to the t8 d,ecision that I suggest you aLl realIy trave to make 19 and ttrat is: "Is my cLient going to be a threat, to 20 the administration of just,ice, to ttre bench and the 2L Barr s reputation and, to tris clienteLe'.s welfare; 22 should tre be readmitted?' And. I submit there is no 23 reason to think that he wiJ.L be and f urge you to readmit him. l'n 25 Thank you. FRIEDMAN LOMBARDI & OLSON COURTREPORTERS 282 l- MS. DAVIS: Ms. Smith- 2 Ms. SMITH: r would just disagree wittr utre 3 proposition that there is no irrespoasibility with 4 respect to tris t,axes. NoncomBliance witl' the law is 5 irresBonsible, regardless of how you handle it. The 5 Corrt has told us that what is to be looked at is the 7 seriousness of the misconduct in l-igrht of ttre showing I of rehabilitation, not whether the applicant trag been 9 admitted. to anlr ottrer Bars in between ttre time lre was 10 disbarred and the time Lre comes before us for tris 11 formal hearing, and I submit to you ttrat that is the L2 standard ttrat you should apBly- 13 Thank you. MS DA\IIS : Ttre record is c]-osed. The L4 . . 15 hearing is adj ourned. Ttre applicant and all 15 witnesses are released, and the hearing room wilL be L7 cleared. Ttre formaL panel- will deliberate and, base 18 it,s recommendation regarding ttre aBplicant's 19 admission upon ttre record made at this formaL 20 lrearingr. pursuant to RuLe 3-23.'t , f indings of fact 2t and. concLusion of law wilL be issued by the Court. 22 Ttrank you. 23 ' MR. I{EISS: Thank You, ma'am- 24 (Thereupon, the proceedings were concluded 25 at 3:40 B.m.) FRIEDMAN, LOMBARDI & OLSON CO URTREPORTERS 283 1. STATE OF E'LORIDA ) ) SS: 2 COU}TTY OF MIAI{I-DADE ) 3 4 T, the und.ersigmed authority, certify that 5 all of the witnesses personal.ly appeared before me 5 and were duly sworn. 7 WITNESS my trand and official seal this 23rd 8 day of Apri1 , 2OL3. 9 10 11 TERESE , Court Reporter L2 Notary PubLic State of Florida My Corunission No. EE AL4657 13 E: 23 24 25 FRIEDMAN LOMBARDI & OLSON COURT REPORTERS 284 t CERTIFICATE 2 STATE OT TLORIDA ) 3 ) SS: courvrY oF MrAI4I-DADE ) 4 5 T, TERESE VARGO, Court ReBorter and Notary 5 Pulclic in and, for tlre State of F1-orida at Large, 7 certify that I was auttrorized. to and did I stenograBhically report the foregoing Broceed.ings and 9 that this transcriBt is a true and complete record. of 10 the proceedingrs. 11 f further certify ttrat f am not a relative, L2 employee, attorney or counsel for any of the parties, 13 nor am I a relative of , emp1-oyee of any of ttre 7.4 parties I attorney or counsel connected with the L5 action, rror asl I 'financia1].y interested in ttre 15 action L7 DATED this 23rd of Apri]-, 20L3. 18 L9 20 2t TERESE VARGO Notary Public State of F]-orida 22 My Coumission No. EE 0L4557 E:rgrires: $eptember L9 , 20tL 23 24 25 FzuEDMAN, LOMBARDI & OLSON COUBT REPORTERS INVESTIGATIVE HEARING i... rli 'i BOARD'S FLORTDA BOARD OF BAR EXAMINERS EXHfBII No. RE: DONALD L. FERGUSON Transcript of confidential proceedings had and test,imony Laken aE the invesLigative hearing before a division of the Board, such division having been appointed under RuIe 3-20, Rules of t,he Supreme Court Relating Lo Admissions Lo the Bar. MEMBERS OF THE BOARD: GAIL E. SASNETT, PRESIDING OFFICER JUDY DOYLE BILL WAGNER APPEARANCES : JOHN A. WEISS , ESQUIRE ALSO PRESENT: ..: CATHERINE MONTPEI,I-, IER PLACE: GRAND HYATT 29OO Bal4>ort Drive Tampa, Florida 33607 DATE AND TIME: MAY 18, 20L2, B a.m. EXHIBITS: Board' s Exhibit t, Page 4 Board's Exhibit, 2, Page 30 This transcript is confid.ential and may not be published or released except as provided under the Rule 1-50 or ot,herwise auLhorized by the Supreme Court, of Florida. INDEPENDENT REPORTING SERVICE . I, i'i., . .<: ALB East Madison SLreeL rffilI"- Tampa, Florida 33602 (813) 225-L666 I TNDEPENDENT REPORTTNG SERVTCE (813) 22s-7665 b2bb, 24f€699,4bd&9642-Ob7589bbbf0a Page 2 L INDEX TO PROCEEDTNGS 2 Witness or Proceedings Page 3 4 DONALD L. FERGUSON 3 5 Examination By Ms. SasneLL 5 5 Examination By Ms. Doyle 9 7 Examination By Mr. Wagner 13 I Examination By Ms. Sasnett 16 9 Examination By Ms. Doyle L7 10 Examination By Ms. Doyle 1-9 1_ 1_ Examination By Ms. Sasnett 20 L2 Examination By Mr. Wagner 39 13 Examinat,ion By Ms. Sasnet,t 4a L4 Examination By Mr. Weiss 64 15 CERTIFICATE OF REPORTER 67 L6 INDEX TO EXHIBITS L7 18 Marked for Identification and Attached to tshe Record for the Board: L9 20 Exhibit 1 4 2L Exhibit 2 30 22 23 24 -1 25 TNDEPENDENT REPORTING SERVTCE ( ETg ) 225 -1,666 b2bbl 24f -3699.4bd$.9dr20b7589bbbl0a Page 3 1- PROCEEDINGS 2 THE COURT REPORTER: P1ease raise your right 3 hand. 4 Thereupon, 5 DONALD L. FERGUSON, 6 a witness, having been duly sworn to te1I the t,ruth, 7 the whole truth and nothing but the truth, was 8 examined and testified as follows: 9 MS. SASNETT: Sir, state your ful1 name and 10 residence address for the record. 1_1_ THE APPLICANT: Yes, mat am - Donald Lee 1-2 Ferguson, 5542 Croydon CourL, Boca Raton, Florida- 13 MS. SASNETT: Ms. Ivlontpellier will hand you a L4 copy of a noLice of your rights and responsibilit,ies 15 sent t,o you by the Board of Bar Examiners - Do you t6 recall receiving that? t7 THE APPLICANT: Yes, maram. 1-8 MS. SASNETT: Have You read iL? L9 THE APPLICANT: Twice- 20 MS. SASNETT: Do you have any questions 21- concerning its contents? 22 THE APPLICANT: I do not,. 23 MS. SASNETT: Are you satisfied thaE you 24 understand your rights and responsibilities before 25 the Board? INDEPENDENT REPORTING SERVICE (81-3) 225-1556 b2bbt 24f -36994bdG9642-Ob7589bbbf Oa Page 4 1 THE APPL,fCANT: Yes, maram. I 2 MS. SASNETT: I offer this as part. of the record. 3 to be filed in this proceeding as Board Exhibit No. 4 1-. 5 (Thereupon, Board's Exhibit 1 was marked for 6 identif ication and attached to t.he record. ) 7 IilS. SASNETT: The members of Lhe panel today are 8 Ms. Judy Doy1e, who is a public member from Orlando. 9 Mr. Bill Wagner, who is an emerit.us attorney member 1-0 from here in Tampa. LL MR. WEfSS: Emeritus, emerit,us. One of the fern L2 people who remembers me from my Florida Bar days. L3 That's going back a long t,ime. 14 MS. SASNETT: And I'm Gail Sasnett and I'm a 15 current member of Gainesville, Florida. 1,6 MR. WAGNER: You don't win friends by talking L7 about a manrs age. 18 MR. WEfSS: I thought you were the youngest L9 person ever on the Board of Governors of t,he Florida 20 Bar at t.he time. Admitted. to the Bar at L7 and on 2t t,he Board at 20. 22 MR. WAGNER: Hets going to try to catch up no 23 matt.er what.. 24 MR. WEISS: Good to see you again, Mr. Wagner. 25 MS. SASNETT: We may all have guestions of you, INDEPENDENT REPORTING SERVICE (ATS) ZZ5-L656 b2bbl 24f -36994bd6-9642-Ob7589bbbl0a Page 5 1 but ilm going to lead the quesLioning Lhis morning. 2 Well, we think I'm going to l-ead the quesLioning, but 3 somebody else may actually lead it. we have a lot of 4 information Lo review wiLh you today though and so 5 we,11 begin. And the initial thing t.hat we're going 6 to want. to hear about. are the felony convict.ions. 7 THE APPLICANT: Yes, mafam. I EXA}IINAT]ON 9 BY MS. SASNETT: 10 o so if I could ask you to tell us about the first L1 one thaL I have is the conspiracy to obstruct just,ice and t2 money laund.ering from L995, f believe, is that right'? t_3 A Yes. I ' 11 st,art f rom the beginning and feel L4 free Lo interrupt so I can answers guestions. l-5 O Yes. a6 A In 1995 I was a practicing federal criminal L7 defense lawyer. I had a background as an Assistant. United 18 states Attorney in the southern District of Florida t9 beginning in 1-973 and when I after almost four years I 20 went into the defense of primarily narcotics cases because 2a that's whaL I primarily prosecuted as a prosecuLor. I 22 worked hard over the years, and in the early 1990s I began 23 t.o work with a 1aw firm out of Lhe District of Colombia by 24 the name of Ristau c Abbell 25 MR. WEISS: Can You sPell that? INDEPENDENT REPORTING SERVICE (ATT) 225-L666 b2bb1 24f-36994bdG9M2'Ob7589bbbl0a Page 6 1_ THE APPLICANT: Yes. R-I-S-?-A-U and Abbel1 is 2 t,wo BIs and two L's. Ristau c Abbell were both 19 3 and 21-year members of the Department of Just.ice. 4 They were very bright lawyers. They represented two 5 of the f 'm going back to the 90,s now. They 6 represent,ed two of the Colombian drug lords. Back 7 then Colombians were in charge of drug trafficking. I I'm sure you all remember. And but they weren,L 9 trial lawyers. 10 So when somebody got arrested in the United 1L States and they needed a t,rial lawyer t.hey would t2 cont.act various people, and f was recommended t.o them 1-3 and ulLimately we began an association. I would L4 represent the federal criminal proceedings people 15 that would get arrested that worked for t.he people in 1-6 South America. We1I, as time went on they, of t7 course, had their dealings wit.h two of the drug l-8 traffickers Miguel Rodriguez Ore1uelo, 1_9 O-R-E-J-U-E-L-O, and Jose Santa Cruz Madonia. 20 As time went on and people more and more 2L people were geLting arrested, and t,he focus of the 22 Department, of Justice was on t.he drug trafficking in 23 Colombia, Michael Abbell and associat.e, Francisco 24 Laguna, began obtaining affidavits first for the use 25 in Colombian courts of law t.o fight the extradiLion TNDEPENDEMT REPORTING SERV] CE ( 81.3 ) 225.3-666 b2bb1 241€6994bdG,9642"0bzs89bbb0a Page 7 Government of L of these people because back then the , the United StaLes was attempt,ing to extradite people. 3 BY MS. SASNETT: 4 O Was extraditing people from Colombia? was 5 A Yes. Colombian naLionals which Lhere Americans were 6 much Colombians were ouLraged that the and 7 insistent. on trying to do that. so Michael Abbell I Francisco Laguna were securing affidavits from various united 9 people, many of whom I d.idnrL evea know, across the l-0 SLates on behalf of t.he those two drug traffickers in 11 Colombia. I believe in 1-993, ffid'am -- L2 olletmestopyouthere.Theaffidavitswere 1_3 do you know what. was in the affidavitsa L4 A I was going to exPlain to that' l-5 O OkaY. Good. L6 AlcametothepoinLwhereFranciscoLaguna L7 called me one day. Let. me back up just a second. Irm you all will- 1_8 trying to make this as simpte as I can so L9 undersLand it. There was a very large scale ind'ictment 20 involving an awful lot of cocaine coming in on a ship into 2t the Government where theY cut 22 MR.WEISS:AndtheseareGovernmentcut,is 23 LhaL what Yourre saYing? 24 THE APPI,ICANT: YCS . 25 MS. DOYLE: Excuse me' You' re going to have to INDEPENDENT REPORTING SERVICE (ETg) 225-L666 b2bbl 24f '3699-4bd6'9542-{rb7589bbbf0a Page I 7 speak up. 2 THE APPLICALIT: Okay. I'm sorry. I should know 3 this. A very large shipment of eocaine was import,ed 4 in the United SLates and about 12 or 15 peoplq were 5 arresLed Mike Abbell and Francisco Laguna sIow1y over 6 the months began to try to obtain affidavits from not 7 only those individuals, but, other people across Lhe 8 United States. I was contacted one d"y, I believe 9 1993, iL's in the indictment, to bring my notary t-0 stamp t.o the Federal Correctional Institution down in 1- l_ Sout.h Miami Dade County. L2 f 'd like to add that f had up to t.hat point j-n 13 time nothing to do with the affidavits nor was f even t4 asked to have anything to do with the affidavits. I L5 was asked Lo bring my notary st.amp t.o t.he FCf , f ' 11 L5 refer to it as the FCf, which is the federal prison L7 detention center. And when I walked int.o the L8 attorney visiting room Michael Abbell and Francisco L9 Laguna had in the visiting room one of the Defendants 20 by the name of Harold Ackerman. f knew who HaroLd 21 Ackerman was from. 22 f had been hired to represent one of the other 23 defendants in Lhe case, so I had gone through some of 24 the documents. I knew who he was. There were 25 newspape.r articles. It was a huge seizure and it was INDEPENDENT REPORTING SERVICE (ATg) 225.1566 b2bbl 24f €69gbd&9642-Ob7589bbbfoa Page 9 1 in the Miami Harold and the newspapers in south into 2 Florida for weeks and weeks by then. I walked speaking 3 the visiting and I was surl>rised to see t.hem 4 wit.h Harold Ackerman because Lhey did noL represent him. 5 Harold Ackerman, another attorney represented t.hey 6 And r walked in and they looked at me, and said be 7 had a document in their hands that turned out to Ackerman to B an affidaviL Lhat was presented to Mr. 9 sign. They said, Don, we'd like you to notarize l-0 Harold Ackerman's signature on this affidavit. read 1r_ Now, it was in Spanish- I don't really l2 Spanish. I read a Little bit of it, buL I put two knew 1-3 and two together on the spot, and I immediately no L4 whaL was going on. First., Ms. sasneLt, there was 15 way thaL Harold Ackerman can sign an affidavit L6 exculpating Mr. Orejuelo from that lived in L7 Colombia. It had t.o have been false. I didn't speak 1_B to Harold Ackerman. I didn't draft the affidavit, 19 but I knew I had been around the block long enough 20 to understand what it was and I knew what they were 2'J. d.oing. And I notarized' his affidaviL' 22 EXAMINATION 23 BY MS. DOYLE: 24 0 What. were lheY doing? 25 A They were aL that point in time they wanted IIIDEPENDENT REPORTTNG SERVTCE (81-3) 225-1-666 b2bbl 24f€6994bds9642'Ob7s89bbbtua Page 1-0 L Mr. Ackerman Lo sign the affidavit, the affidavit 2 basically said f got you know, I'm charged wiEh drug 3 trafficki*g, but Miguel Rodriguez Orejuelo didn't have 4 anything to do with this drug trafficking. Now, init.ially 5 they were going to submit those affidavits to the courts 6 in Colombia, buL later they held them in their back pocket 7 to use here I O Are you saying that Mr. Ackerman didn'L 9 understand what he was 1-0 A No. f had no conversation with him, but I don'E 11 know what they discussed, but he signed it. in my presence. 1,2 O Do you think he understood what he was signing? 13 A f do. I do. Yes, ma'am- I left. f had 14 again, I had no conversation wiLh Ackerman. I never had a 15 conversaLion with Ackerman. Later on it. came a poinL in 1"6 t.ime when I was asked to notarize a second affidavit. by L7 one of the defendants in the case, I believe his name is l-8 .Tuan Jose Guel, G-U-E-L. He was very much an underling in L9 the entire case. A Cuban American young man t.hat was a 20 driver, I believe, Els I recaI1, was arrested with a car 21- load of some of the cocaine that was imporLed int,o the 22 United St.at.es. I notarized his signature on a similar 23 affidavit that was in English. 24 O And you're doing t.his at the request of your DC 25 colleagues? ]IIDEPENDENT REPORTING SERVTCE (ETS ) ZZ5-A566 b2bbl 24t-369$4bd&9642-Ob7s89bbb0a Page 1L 1 A Correct. 2 O There were attorneys involved in this? 3 A Oh, yes. I never had anything to do wiLh 4 draft.ing these affidavits, but. f 'm not saying thaL as any 5 t)?e of excuse at all. I was a Seasoned trial lawyer. I 6 knew what, they were doing, and I knew what they were going 7 to do with those affidavits- I O /tnd you knew what you were doing was wrong? 9 A Absolutely without a doubt- Now, with respect 10 to Mr. Guel r really didn't know what he knew about. the LL people in Colombia. He was really on the Iow ladder, 1-2 drivers generally are purposely insulated of any knowledge 13 of the ongoings of t.he higher ups. So it didn' t maLter. 1"4 It didnrt, matter signing an affidavit. that again, I l_5 didn,t speak with him. I didn't prepare the affidavit. \6 It didn't matLer. I knew I just knew it was wrong. t7 O May I interruPt You for a minute? 1-B A Yes, matam. t9 O You knew it was wrong so why did you do itz 20 A Rist,au & Abbe1l I thought. about that' many 2L t,imes. Rist.au & Abbell over the years had sent an awful 22 1ot of business to me and I'm going to be honest. and 23 sLraight forward. 24 O Why dontt do You t.hat. 25 A An awful lot of business and put an awful lot of INDEPENDENT REPORTING SERVICE (ATg) 225.1.666 b2bbl 24f-369$4bd6'9M2-Ob7589bbbf0a Page 'J.2 1, money in my pocket,. When I was hired in these cases, 2 t.hese cases were $l-00,000, $200,000, $350,000 so I had -- 3 t.hey had puL a substantial amount of money in my pocket. 4 Of course, t.he right thing t.o have done would have been 5 just in spite of the money say no. I didnrt. 6 0 A11 right. So there was just a greed factor? 7 A Absolutely. I 0 Did you ever Lalk to Lhose attorneys and say 9 what.ts going on, why are we doing this? 1_0 A I did have a conversation with both Abbel1 and 11 Laguna before we got in trouble actually, and I said L2 basically you guys better watch ouL what you are doing. L3 That's dangerous stuff Lhat youtre becoming involved in- L4 They did other t.hings. They were act.ually taking 15 depositions aecording t,o law.of people, forLunat,ely, I L6 didnlt, have anything to do with that. In answer to your L7 question short answer is, Yes, I did on a number of 1_8 occasions, yes. 19 O So you all discussed it? 2A A Yes. 2t a And you all knew what, you were doing was wrong? 22 A No question on my part I knew whaL I was doing 23 was wrong. They had to also. 24 O I'm sorry. So go on with your story. 25 EXATVIINATION INDEPENDENT REPORTING SERVICE (813) 225-L666 b2bb I 24f €699,4bd6-9542-0b7589bbbf 0a Page l-3 1 BY MR. WAGNER: 2 O Let me interrupt, here. I want to be sure this 3 is all covered -- this all occurred before Lhe criminal- 4 indictment of you? 5 A Yes. 6 0 The indict.menL which as I understand you pled 7 no1lo cont.ender to most of it or I A I pled guiltY. 9 O You pled guiltY? 10 A I pled guilty t.o a superseding information that 11 had only two counts. L2 O Okay. And then as a result of that acLivity you 1-3 were suspended from the Bar? L4 A Yes. I agreed t.o a susPension. l-5 O And you agreed to that? 16 A r did. L7 O And you were suspended. from the District CourL 1-B of Appeals? L9 A I was. 20 0 And federal court? 2t A Yes. Yes, sir. 22 a I donrL know any other courts, buL a number of 23 Lhose. And then you went, to jail; is t,hat right? 24 A Yes, sir. 25 O How long did you actually serve in jail? INDEPENDENT REPORTING SERVICE (8].3 ) 225 _1665 b2bbl 24f -3699.{M6-9642{b7589bbbf0a Page L4 1 A I served 25 months. 2 o Okay. And how long were you on probation? 3 A Five years. 4 o Okay. And you successfully completed your 5 probation? 6 A r did. 7 0 f don't do criminal 1aw, so f'm noL sure what 8 happens then, do you get some kind of certificate that you 9 were finish with probation? l_0 A The-V donrt, exactly t,hrow a party for you, buL 1l_ what happens is you receive a notice of discharge and L2 these are not. the right words, it , s some tpe of you're 1-3 off of probation, Ferguson. L4 O And your probation officer is one of the people L5 that, is suggesting you should be admicted to the Bar; is 1"6 that correct,? L7 A Yes. 1_8 O Okay, The reason I want to do that is because I 19 wanted to make cert,ain that. you understand that, you,ve 20 already been punished. I want to make certain that you 2L undersLand that you have been punished by the Bar by 22 having your license taken away from you? 23 A Yes- 24 O And. yourve been punished. by the Government by 25 being put in jail and served jail? INDEPENDENT REPORTING SERVTCE ( 81-3 ) ZZS _L665 b2bb1 24f €,69Hbd6€642{b7s89bbbf 0a Page 15 L A Yes, sir. 2 0 And you served probation successfully? 3 A r did. 4 O A11 that. is in the past- So what I would want 5 t.o focus on when iL gets around Lo me asking any questions 5 is whatts haPpened since t.hen? 7 A I would be happy to answer any question since I then. 9 O Thank you. Go ahead- f'm sorrY. l-0 A There was another part of that case,. Lhe money was 1- l_ laund.ering part. of t.hat. case involved I think it. L2 1-993, Lhe latter part of L993 as a mat.ter of fact I 13 remember it was October L993, Francisco Laguna was really L4 the go-to man for the drug lords in Colombia. He was 15 Colombian born, natural-ized and became a member of the DC a6 Bar. He was actually very bright young lawyer, not a lot 1"7 of common sense, but he was sort. of the go-to guy. He was 1-B sort of the bagman so to speak. He delivered cash aII 19 over the place. Cash to lawyers, cash to wives of 20 d.efendanLs, cash to bondsman. He did that and f rea1ly 2L didn'L know that he was doing it at the time except, I 22 suspected it. OkaY. 23 He called me one day and said there had been a 24 new arrest. A defend.ant by the RauI Marti, M-A-R-T-I' 25 And Marti's bond was set at $750,000 at 3-0 percent,, which INDEPENDENT REPORTING SERVICE (81.3) 225-L666 b2bb'l 24f€69S4bd$9642'Ob7s89bbbf0a Page l-5 L means a defendant has to put. up $75,000 of cash. At the 2 Eime that, and some other lawyer represented Mr. Mart.i, 3 but Marti worked for one of the Colombian drug dealers. 4 Marti needed $75,000. I didn't know any of this at t.he 5 time. Francisco Laguna I soon found out. Francisco 5 Laguna ca1led me from Colombia and said, Don, f need you 7 to do me a huge favor. I said what, is that? I would like B to have $75,000 in cash delivered. to you, and. f wouId. like 9 you to give it to Raul Marti's wife. So that she can give L0 it to the bondsman for t.he $75,000 premium for the bond. LL I init.ially said no. I knew that was wrong right off the L2 baL. No quest,ion about that. I initially said no and as L3 I reca11 I said Ewo or three other t.imes. He Lhen called L4 and said, h.y, 1ook, Don, you know, f need you this time. l-5 I'm not. there. I don't, have anybody else that. can do L6 this. And f said yes. L7 A day or two later into my office walked what 18 appeared to be a Colombian man, and he delivered to me t9 $75,000 in cash in a envelope. Mr. Laguna had apparent.ly 20 spoken with RauI MarLi's wife. She cal1ed me, a meeting 2L was arranged at a shopping cent,er and I handed her the 22 envelope. 23 EXAMINATION 24 BY MS. SASNETT: 25 O V{hy could he not do the delivery directly to TNDEPENDENT REPORTTNG SERVICE (ATS) 225-L666 b2bbl 24t€69+4M&9642-0b7589bbbf 0a Page !7 1- her? 2 A He was in Colombia. 3 O BuL there was a currier thaL brought it to you? 4 A I don't know. Thatrs a good question- I donrt 5 know. 6 O OkaY. Go ahead. 7 A And so the obsLruction of justice charge thaL I I pled guilty to, t.haL I was guilLy of, involved the two 9 affidavits and the money laundering charge that I pled 1_0 guilLy to, of course, involved the $75,000 clearly. L1- EXAMINATION 1"2 BY MS. DOYLE: 13 O You said when Lhey asked you to deliver the 1"4 money you rejected that 15 A r did. L6 O three or four times? L7 A Two or three Limes. 1B O Or two times because you said I knew that was 19 wrong? 20 A Right. 2L O But you knew the ot,hers were wrong too? 22 A Yes. 23 O And so you finally yielded because? 24 A I hate to say this, buL this is Ehe Lruth. It 25 was because of what Lhey had done for me, all the money INDEPENDENT REPORTING SERVICE (AT:) 225-1-566 b2 bbl 24f -36994bd6'9642-Ob7589bbbf 0a Page 1-8 1 they had put in my pocket over the actually, it had 2 been years by t.hat time. By then my practice was probably 3 80 percent of the clienLs referred by the law firm of 4 Rist.au & Abbel1 that's thatrs how much business they 5 had sent me. So if you have any questions Itm happy to 5 answer. 7 O And one other question, f'm just curious, not I that. it. rea1ly has anything to d.o wit.h this, but did it 9 ever occur to you that this is going Lo come Lo no good 10 end, Lhat the Feds are wat,ching? L1, A I can't, teII you how many times I have thought 12 about t.hat. And, of course, it's been a long time, but I l_3 know myself better than anybody so, of course, I knew 1-4 about, t,hat. l_5 O But werenrt you part of the U.S. Attorneyts L6 Office and you knew how the Government worked? 'J"7 A Yes. Yes. Itls worse than that. I worked with 1_8 the DEA hand and hand. I was sorL of their go-to guy in 19 prosecuting t.heir most complex federal criminal cases. f 20 knew many of them were my personal friends. The answer 2t is yes. I knew t,he syst.em well. 22 O' So the pipeline of money that it generated for 23 your firm just clouded all your underst,anding of how of 24 the GovernmenL worked? 25 A Yes. INDEPEIIDENT REPORTING SERVICE (ET:) ZZ5-1,656 b2bbl 24f€69$,4bdG9642-Ob7589bbbrfoa Page L9 f, I I 1 a okay. 2 A Yes. 3 MR. WAGNER: I'm just curious, what happened to 4 the two lawYers? 5 THE APPLICAI{T: Michael Abbel} was indicted, of 6 course the same indictment for far more serious 7 crimes and as to serious f don't mean to downplay I these. He wenL to trial, shockingly he wenL to 9 t^rial. I was actually subpoenaed to testify in that judge 1_0 case in a very minor way. He t'he trial judge 11_ actually set he was convicted- The trial L2 set LhaL verdict aside and he wenL to trial a second l_3 time. I was called to testify again in a minor part L4 and he ulLimately was convicLed and served I think l_5 he was sentenced to 84 months which he served- L6 I have no idea what hers doing these days. I L7 did happen to check when he was released from the 18 bureau of prisons he was reJeased about four or five 19 years ago and he's noL a member of t.he DC Bar - 20 EXAMINATION 2L BY MS. DOYLE: 22 0 lrlhat about the other attorneY? 23 A Francisco Laguna pled guilty to actually drug 24 trafficking. He cooperated with t,he Government, as did I. 25 He cooperated with the GovernmenL, ultimaLely served four TNDEPENDENT REPORTTNG SERVICE (81.3} 225-1.665 b2bb 1 24f €699.4bd6'9642-0b7589bbbf 0a Page 2A 1 years. There were there was another attorney by the 2 name bf Robert Moore, who did represent Harold Ackerman. 3 He was indicted for money laundering. He served nine 4 monLhs and was recent.ly readmitt.ed to Lhe Bar. 5 MR. WAGNER: Did you say readmitted t,o the Bar? 6 THE APPLTCANT: Florida. 7 MR. WAGNER: The Florida Bar? 8 THE APPLfCANT: Yes, sir. 9 MS. DOYLE: The one who represented Ackerman? 1-0 THE APPLICANT: The one who represented 11 Ackerman, yes. L2 EXAIVIINATION 1_3 BY MS. SASNETT: a4 O What kind of money were you making before this? 15 A Not as much. Not as much. L5 O Well, I mean before you were indicted you said. 17 t,hey were paying you a l-oL of money. Are we talking L8 500,000 a year? L9 A Oh, no. We're talking early 90s I was making 20 net in my pocket, between 200 and $350,000 a year. 2a MS. DOYLE: fn cash? Did they pay you cash? 22 THE APPLICANT: Some of it, was, yes. Generally 23 t.he law firm from DC paid me by check. They got the 24 cash. But other clients would on occasion much 25 smaller cases would deliver cash. Yes. INDEPE}ilDENT REPORTING SERVTCE (81.3 ) 225 -7665 b2bb1 24f €699"{bd&.9642{,b7s89bbbf Oa Page 2L 1 MR. WAGNER: You were a sole practitioner at 2 thaL time? 3 THE APPLICANT: I was, sir- 4 MR. WAGNER: Thank You- 5 BY MS. SASNETT: was 6 O So you wound up serving 25 months and I 7 going through the it, looked like you were in Federal I Correctional Institute in Miami? 9 A I was. 10 O And. Palm Beach County 'Jail at' the same time ' L1 How did t.hat happen? L2 A f saw t.hat. I had to do that because they were L3 shipping me back and forth- L4 O OkaY. 15 A You know, Palm Beach County Jail and then back 1_6 to L7 MS. DOYL,E: Why were you in jail serving 24 1_8 months, shouldn't You be in Prison? L9 T'HE APPIJICANT: Because there is anoLher part to 20 this and here is what happened. On a 24-month 2L senLence you would normally serve I was at a camp 22 for the first 15 months of that - 23 BY MS. SASNETT: 24 O That. was in Pensacola? 25 A That was in Pensacola, but there was a second TNDEPENDENT REPORTING SERVICE (81.3) 225-1666 b2bbl 24f '3699'4bd6-9642'0b7s89bbbfoa Page 22 1 indictment for I was hired in a very high publicity 2 murder case just prior to being indicted and I was paid in 3 cash- 4 O To defend? 5 A To defend a man by the Benjamin Kramer. He 6 had 7 MS. DOYLE: The alleged murderer? I TI{E APPLICANT: Yes. It 's alleged that he had a 9 conLracL put out on Mr. Don Aronow that owned 1-0 cigarette boats. The State had investigated him for 1_L a number of years and they were finally going to L2 proceed. f had just come off about a year before a 1_3 huge murder victory in federal courL, and I don't 'J,4 know I guess that,'s why, but an)rway he hired me and L5 as my legal fee $555,000 in cash was delivered t.o my L5 office in one 1ump. Five cardboard boxes which I L7 t,ook to the bank and deposited. It was so much cash 1-8 t.hat iE was delivered t.o my office on a Friday L9 afternoon. I got t,o the bank 1ate. They didn't, have 20 time to count, it all. f actually had to take parL of 21" it home , Lf you could imagine, and return to t,he bank 22 Monday and deposit the rest of it. 23 BY MS. DOYLE: 24 O Didnlt it, occur to you t,hat that would set of f 25 bells and whistles with the bank? INDEPENDENT REPORTING SERVICE (ATT) 225-1565 b2bbl 24f €69$4bd$9542-Ob7589bbbf0a Page 23 1 A Actually, I had forms to fill ouL at the bank' 2 There were forms I had to fill out- There were IRS forms. 3 I did iL alt. I did it all. Because the law this is 4 one time thaL I d.on't think I did anything wrong actua11y. 5 I f iIled out the bank forms. Then t.here were form 8300s 6 that I had to fill out with t,he Int.ernal Revenue Service 7 and sure I MR. WEfSS: That''s the $10,000 form? 9 THE APPLICAI{T: Yes. The over $10,000. Oh, 10 sure, I knew that was going to get someonels 11- attention. And so what happened was while I was L2 serving the 24-month sentence in the first indicLment 13 just prior to reporting in I was indicted on the 1"4 for a count of receipt of narcotics refated cash that l-5 was narcotics related proceeds- Okay- No one had L6 ever been indicted for that in the country- No 17 criminal defense lawyer and I received it for a legal l-8 fee. I had entered a not.ice of appearance. I was in L9 Lhe middl_e of t.he case in Dade county and I was doing 20 what def ense lawyers do. I was t'he test case. 2L MR. WEISS: You were what? 22 THE APPLICANT: I was the test case- It was 23 just that's just my opinion- I was incarcerated 24 at the time and my attorney filed a motion to 25 dismiss. And, of course, it was complex arguments, INDEPENDENT REPORTING SERVICE (81.3) 225_T566 b2bbl 24f-369$'4bd&9642'Ob7s89bbbf0a Page 24 L litigation, 'Judge Highsmith denied the motion Lo 2 dismissed. We basically argued, 1ook, it's not money 3 laundering because if you look at the federal money 4 laundering statute it has a safe harbor provision for 5 cash received in order to protect. someoners Sixth 6 Amendment right.s. That, was are argument, Iawyers had 7 been receiving cash for years before that. ,Judge I Highsmith reject,ed the motion. f was incarcerat.ed. 9 By that t,ime I was taken out of the camp at l-0 Pensacola aft.er l-5 monLhs and basically bounced L1 around from county jails and lockups for the next 10 L2 months. Ult,imat.e1y I ran out of money. I didn't 1-3 want to ask Mr. Sonnett to work for free anymore. L4 The GovernmenL, of course, was willing to agree Lo no 15 jail time if I entered a plea and I was a pret,t,y L6 beaten guy. L7 MR. WAGNER: Yourre referring to Neal Sonnett, L8 right? L9 THE APPLfCANT: NeaI Sonnett. A friend of mine 20 many years. He actually hired me on at the U.S. 2t attorney's office. So the reason that I didnrt do 22 the normal L8 months on a 24-month sentence was I 23 d.ecided just to remain in pending resolution of t.he 24 narcotics proceeds cash case, the second case. And 25 so r actually voluntarily st,ayed in an ext,ra nine INDEPENDENT REPORTING SERVICE (813) 225_L566 b2bb 1 24f €69$4bd&9642-Ob7s89bbbf 0a Page 25 1 months t.o resolve that. 2 BY MS. SASNETT: 3 O You could have been released? 4 A I could have because I had a bond in the second 5 chase. I chose noL to- 6 BY MS. DOYLE: 7 O But your original sentence was reduced because I you had agreed to cooPerate? 9 A Yes. What happened' was t,he Government f iled a 10 subst.ant.ial assistance motion with iludge Hoeveler, who is 11 sLil1 on the bench. He sent.enced me to 24 months. So I L2 ended up pleading before ,Judge Highsmith and received on l-3 Sept.ember 2L, 2011- and received five years probation on. L4 t,he spot. and I was released that day - 15 MR. WEISS: You said 201L, did you mean 2001? t6 THE APPLICANTz 2001, exact'Iy. And released 1-7 that day having served about 25 months. The Eleventh 1_8 Circuit ulLimately two years ago decided thaL that is a9 not a crime so 20 MS. DOYLE: The accePtance of cash? 21 THE APPLICANT: It doesnrt help me get nine 22 months back, but Lhey did rule in a case of At,torney 23 Benedict where he represent,ed t.he defendant.s. so if 24 I answered the question, Ms - Sasnet't 25 TNDEPENDENT REPORTTNG SERVTCE (81-3) 22s-'J-566 b2bbl 241€6994bd6-9642-0b7589bbbf0a Page 26 1 BY MS. SASNETT: 2 O Okay. So Lhat gets us through even the 3 conspiracy to receive and deposit narcot.ics proceeds? 4 A Yes. 5 0 Okay. And then there was a judgment of 6 forf eit,ure? 7 A Yes. And that was just the forfeiture for t.hat I specific money, but it had long been spent.. 9 O I was wondering about that? 10 A Yes. No, the Government never on occasion 1_ 1_ they'11 move for substituted assets, but they never did L2 because it was a plea agreement.. That really didn't 13 MR. WEISS: Yourre fading ouL, Don. t4 THE APPLICANT: Okay. I'11 keep my voice up. 15 MS. DOYLE: Does that bring us to the petit L6 theft? L7 BY MS. SASNETT: 1B O Your civil rights were restored. The petit t9 thef t., what. year was t,hat ? 20 A What pet,iL thefr? 2L MS. DOYLE: 2000. 22 THE APPLICANT: I never committed 23 BY MS. SASNETT: 24 a No. That. was a different. social security. 25 MS. DOYLE: Oh, that's right. It was the wrong INDEPENDENT REPORTING SERVICE (8Tg) ZZS-L566 b2bbl 24f€6994bd&,9642-0b7589bbbf0a Page 27 1 Don Ferguson. Irm sorry- 2 THE APPLICAIIT: It's a pretty common name' 3 BY MS . SASNETT: 4 O So you had your civil rights restored? 5 A I did. I applied immediately after released 6 from supervision in I think I submit,ted Lhe application 7 August 4Lh of 2006, it took 39 months and my civil rights B were restored December of 2009 - resigned 9 a December 2009 and meanwhile you had 1_0 from the Florida Bar? 1-1 A I did. VoluntarilY, Yes- L2 a And then l-3 MS.DOYLE:Youmeanbeforetheycoulddisbar L4 you? 15 THE APPLICANT: Sure- going 1"6 MS. DOYLE: Because you knew thaL you were L7 Lo have 1-8 THE APPLICANT: CertainlY. 1_9 MR. WEISS: Disciplinary resignation is 20 equivalent to disbarment and it's specifically 2L phrased as such, noL like I quit. so it was always 22 considered bY all a disbarment. 23 BY MS. DOYLE: 24 0 Before we go on one other question. I am reaIIy 25 trying to undersLand what was going on in your mind when INDEPENDENT REPORTING SERVICE (ETg) 225-L666 b2bbl 24f €699'4bd&9642-Ob7s89bbbf 0a Page 28 1 you did all Lhese t.hings LhaL you knew were bad. And you 2 explained that, but did any of your former colleagrues of 3 the U.S. Attorneyrs office or DEA say, Don, what,s going 4 on here? Could anybody else see t,hat you were going down 5 a path that was a dangerous one? 6 A WeII, it's difficult for me to answer about the 7 affidavits, other than Abbell and Laguna f didn't have any 8 conversation with anybody about that.. And, of course, 9 when I took the $75,000 in cash nobody knew that. 1-0 O So there was no reason for the feds, your LL friends, former col.Ieagues, to suspect that L2 A The part, that. really upsets me to a great deal L3 is many of my colleagues when t,hey heard the allegations L4 said Don Ferguson did that? That's not t.he Don Ferguson 1_5 Irve known over the years. 76 MS. DOYLE: Okay. L7 IIIS. SASNETT: Mr. Ferguson, Ms. Ivlontpellier has 18 copies.of the indictments, I believe,- is that 1-9 correct? 20 MS. MONTPELLIER: Yes. 2L BY MS . SASNETT: 22 O That we will just enter as an exhibit itrs 23 the Unit,ed St,ates of America it looks like Blase 24 Antonio Gonzale.z? 25 A That, was the initial one t.hat lead, Ms. Sasnett,, INDEPENDEIi',I REPORTING SERVICE (gr: ) ZZS -L666 b2bbl 24t€69Hbd&9642-Ob7s89bbbf0a Page 29 L returned years ago and then -- yes. This was initially -- 2 this was t.he beginning of the case filed in 1993 to which 3 was superseded several times 4 O OkaY. 5 A along t.he Years, Yes - 6 O And then this was another this is U-S- 7 District Court I A This is the same case. 9 MR. WEISS: Def ine "L,hisrr for the record- 10 A Yes. I have t.he indictment in my lef t hand, 1l- Case No. 93-0470. And Lhen in my right hand is the t2 what we call the judgmenL and commitment form following 1_3 sentencing by .Tudge Hoeveler in the same case of which I L4 was a defendant. 1-5 BY MS. SASNETT: L6 O Okay. And this nexL one this would' be a 1-7 composit.e exhibit so I want. to identify all of Lhem- 1_8 A This is Case 9g-LL6 in front of 'Judge Highsmit'h L9 and this is the indictment t.hat charged the receipt of the 20 cash to represenL Benjamin Kramer. 2L O And t.his? 22 A And. Lhis is the judgment, in t.he criminal case in 23 the same case 99-l-l-6, Judge Highsmith, to which I was 24 sentenced five years of probation. 25 O Okay. And then this nexL is? INDEPENDENT REPORTING SERVTCE (813) 225_1-666 b2bb1 24f€699-4M&9642{b7s89bbbf0a Page 30 1_ A This is the final judgment of forfeiture ent,ered 2 in the ,Judge Highsmith case Ln 2002. Yes, maram. 3 a Okay. And this final document? 4 A This looks like my application for restoration 5 of civil rights. 5 O Okay 7 A It. was filed by me on October 2, 200G. I MS. SASNETT: And we will enter these as a 9 Composite Board Exhibit No. 2. 10 (Thereupon, Board's Composite Exhibit 2 was 1_1 marked for identificat.ion and attached to the 1,2 record. ) 13 BY MS. SASNETT: L4 O It appears that you were suspended from the 15 Fifth Circuit, Court of Appeals? 16 A Yes, maram. a7 O Where else? l-8 A I was suspended by the Fifth Circuit Court of L9 Appeals , by t,he ElevenLh Circuit Court of Appeals. f was 20 removed. from the role of attorneys in t.he Southern 21- District of FLorida. And, of course, I resigned from the 22 Florida Bar. 23 MR. WAGNER: No questions. 24 BY MS. SASNETT: 25 O A11 right. Then let,'s get to the financiat I}UDEPENDENT REPORT]NG SERVICE (8].3 ) ZZS -1.566 b2bbl 24f -3699-4bd&9642{b7s89bbbf 0a Page 3L L issues. There was Beach Acceptance Corporation, a lawsuit 2 Beach Acceptance Corporation. 3 A Yes. 4 O Tel1 us about this issue. It. looks like telI 5 us. 6 A Okay. I t 11 just need a few words to give you a 7 Iitt1e background so you understand and It11 keep my voice I up. 9 O Yes. Go ahead. 1_0 A In 1980 a group of 10 or lL of us purchased an LL insurance company in Ind"iana caIled A1lied Insurance 1-2 Company. It wrote various lines of insurance. And I was L3 a director of Lhat company. I had nothing to do with the L4 ongoing the business day-to-day dealings of the 15 company. There was a president and an executive vice 16 president that did t,hat. But. as part of the company since L7 there were a 1ot of executives in Indiana that needed l-8 privat,e aircraft we began a companied called Prest,ige L9 Aviat.ion. And it. was basically a spinoff from Al1ied. 20 And we leased a number of aircraft. One of them was a 2L f'm not real familiar with aircraft, one of them was a 22 Beechcraft King Air that comes to mind. 23 t{hat happened was in 1-985 t,he company was 24 liquidated by the insurance commissioner of the State of 25 Indiana for insufficient reserves. It came as a total INDEPENDENT REPORTING SERVICE (81.3) ZZ5-1-666 b2bb1 24f €69$,4bd6-9542-0b7s89bbbf 0a Page 32 1 shock to me on the day that, I received Lhe phone caI1, but 2 when the company was liquidated it therefore the 3 subsidiary, Prestige Aviation, could no longer be 4 supported because many of the executives from Al1ied 5 Fidelit.y would use the aircraf t, to supporL Prestige. 6 So 7 IvIR. WAGNER: Can I interrupt, for a second? B THE APPLI CAI{T: Yes, sir 9 MR. WAGNER: Were any of these executives that l_0 put t.ogether insurance.things like that were they 1_1 relat,ed to t.he drug operation? L2 fHE APPITICANT: Not at all- 1-3 MR. WAGNER: Total separate? L4 THE APPLICAIIT: Not at all. They a]1 lived in 15 different parts of the counLry. L5 MR. WAGNER: Okay. L7 THE APPLICAIIT: The lease on the Beechcraft King l-8 Air went, into default and we were basically aIl sued. L9 I was still practicing 1aw when that happened, and I 2A was still earning money. This was, of course, 2L predaLes my association with the Ristau & Abbell by a 22 number of years. I settled the case. f believe I 23 set,t.led it. for $30,000. That's what I recaII, two 24 payments of 15,000, buL I se.tt.led. Yes. 25 MS. DOYLE z 32,000. ]NDEPENDENT REPORT]NG SERVTCE (81-3) ZZS-1.666 b2bbl 24f €6994bdG9642-Ob7589bbbf Oa Page 33 l_ THE APPLICANT: OkaY- 32,000. 2 BY MS. SASNETT: and 3 O What l,re show is two inst,allments of 10,000 4 two installments of 5,000- 5 Okay. 6 o what abouL your tax federal tax liabiliEies? 7 A Wet1, each Year I'm current,. Irm on an 8 extension from 2\ll, but I have paid in exact'1y what I 9 paid in for 201-0. So I anticipate being 1_0 BY MS. DOYLE: l- 1- 0 Are you currentlY working? L2 A I am. l_3 O What do You do? L4 A Irm a Paralegal. 15 O For? L6 A The Law Firm of scarlett & Gucciardo in Delray 1-7 Beach. 1-B O And how much are you earning in that capacity? L9 A About l-OO last year I earned 100 and lrm 2A going to be very close here $165,000 21_ O As a Paralegal? 22 A Yes. 23 MS. DOYLE: Isnrt that on the high end for a 24 paralegal? 25 THE APPLICANT: Sure. INDEPENDENT REPORTING SERVICE (81.3) 225_1-666 b2bbt 24f €6994bdG'9642-Ob7589bbb{oa Page 34 1 BY MS. SASNETT: 2 O I've never known a paralegal to earn anlnuhere 3 from half of that much? 4 A We}lr 1rour normal paralegal usually doesn't have 5 a 1aw school educaLion or experience that f do. First of 6 aII, the guys that. I work for are they're wonderful. 7 They do very well financially. I BY MS . DOYLE: 9 O What, type of practice is this? 10 A Itrs securities. IL's a securities arbitration 1L practice. And they do very well and we're aII very good L2 friends. Brad Gucciardo and I have been friends for 10 l-3 years and. 74 MR. WEISS: Will you spell Bradts last name? 15 THE APPLICANT: Yes. Gucci as in Gucci, 1,5 c-U-C-C-I-A-R-D-O and guit,e honestly f work very L7 hard. On many weekends, if I can, and. I share with 18 t.hem all of my experience that. I can. I help them L9 prepare cross-examination and things like that. and 20 they're just wonderful. They show their appreciation 2L by paying me very we11. 22 BY MS. SASNETT: 23 O Are you paid hourly? 24 A I 'm paid rro, I 'm paid mont.hly. I rm 25 act.ua1ly INDEPENDENT REPORTING SERVICE (gT:) 225_T666 b2bb1 24f €69+4bd$9642-0b7589bbbf 0a Page 35 1" MS. DOYLE: A flat rate or -- 2 BY MS. SASNETT: 3 0 A flat rate or how is your compensation in 4 terms? 5 A It is now, but for the first two years I was 5 submitting Lhem bilIs, but now it's sort of agreed on 7 annuaL. I MS . DOYLE: So you've been working t,here four 9 years? l_0 fHE APPLICANT: I've been working there two 1-1 years FebruarY. L2 BY MS. SASNETT: L3 O So in let. me just go through the income L4 A Sure 15 0 issues here with your IRS transcript,. We a6 show t,hat in Lggs there was a tax deficiency of l-5,855. 1,7 That was paid then in 1997. 18 A Okay L9 O Does that sound right? 20 A I actually don't remember that, maram, but okay 2L O That was on $59,000 income' Okay. In L996 22 there was a $2,000 deficiency and that, was on 30,0OO so 23 that was noL a huge ineome. 24 A Did I ul-t,imatefy pay that,? I think I did. 25 O Yes. ft, was paid in futl Ln 2OO1- BuL the tax INDEPENDENT REPORTING SERVICE (ET:) 225-L666 b2bbl 24f-36994bdS9642-Ob7s89bbbf0a Page 36 t95 1_ timely paid in both and '95 was zero. 2 MS. DOYLE: Excuse me, when were you released 3 from prison? 4 THE APPLICANT: September 21, 2007. 5 MS. DOYLE: Okay 6 BY MS. SASNETT: 7 O So this is all prior to I MS. DOYLE: -- going to prison? 9 BY MS. SASNETT: r97 1_0 0 The income shown in these years was $1-3,500 11 wiEh $1-80 deficiency. '98, $51,000 with an 83l-3 1-2 deficiency. All Lhese appear Lo be paid at this poinL. 1-3 A Yes. a4 0 L999 $40,000 with nothing paid t,imely and 1s $L2,37L as a deficiency paid in '05 or released in t06. A a6 tax lien we1I, I have two differenL dates. Released in 17 ,05, reestablished in '05 and then released again in '05. 1B In 2000 a $26,380 income no tax t.imely paid. $7,228 l_9 evenLually paid, released the lien rel-eased in ' 07. In 20 2001-, 35,332 in income wittr a $9,01-8 deficiency and no tax 2L paid timely. AI1 this was during the good years when you 22 were making a lot of money? 23 A From L995 on t.he indictment was in L995, so 24 it was catastrophic financially. We l-ost our home to 25 foreclosure and couldn't make payments, no income, there INDEPENDENT REPORT]NG SERVICE (813) 225-L656 b2bbl 24f -36994bd6-9642{b7589bbbf0a Page 37 1- was it was devastated. z O Was this a joint income? Was this were you 3 married during these years? 4 A Yes. 5 A So this was 6 A I think we filed joinLly every year- 7 O So why would there not have been t.axes t.aken B out? 9 A Because I wasn't employed on a full-t'ime basis- 10 In l-998 and. 1999 before I reported to the prison camp I 1-1 worked as a paralegal in Indiana. And I bilIed on an t2 hourly basis and was paid on an hourly and I jusL quite 13 simply didn't send in estimated t,ax on t,ime. L4 O And was your wife not. working? 15 A I think during those years she was I t,hink 1-5 she was not working. t7 O So then you were released in 1_B A September 2001-. r02 l_9 O r0l-. So in you made $55,589, you did pay 20 tax of $9,257 timely and had deficiency of $6,095- Which 2L has been paid. 2003, 2004, 2005, 2OO5 all you paid some 22 money in, buL had deficiencies every year. By 2007 you 23 made $1_78,997 and had a deficiency of $27,952. where were you that 24 -w.o;king at Point? 25 A In 2007? INDEPENDENT REPORTING SERVICE (81-3) 225-A666 b2bb 1 24f €6994bd6-9642-Ob7589bbbf0a Page 38 L o Yes. 2 A r was working at a law firm by the name of Sonn 3 al:d Erez, S-O-N-N, E-R-F.-Z, in ForL Lauderdale. 4 MS. DOYLE: As a paralegal? 5 THE APPLICANT: Yes. 6 BY MS. SASNETT: 7 O And in 2008 your income shows L31,059 wit,h a I $5,029 deficiency? 9 A These were all joint incomes at this point in 10 time - My wife started to work rLght when f got home in 11_ 2001. L2 O And your wife does what? 13 A She's a hostess at a count.ry club. l4 MR. WEISS: She's a what? 1-5 THE APPLICANT: She's a hostess at a country L6 club in Boca Raton. L7 BY MS. SASNETT: 1-8 O About how much money would she make? t9 A 25 to $35,000 a year 20 O So the great majority of this income is from 2L you 22 A A1ways. 23 o as a paralegal? 24 A Always, y€s. 25 o We show in 2008 $131,059 of income with a #5,029 INDEPEIIDENT REPORTING SERVICE (81.3) 225-1666 b2bbl 24f €6994bd6-9642-0b7s89bbb0a Page 39 1l-1. l- def iciency. That was paid in January of Does that 2 sound right? That's the tax t,hatrs the IRS? 3 A ft doesn't, but okaY. 4 0 And in 2009, we show $171,327 in income. And 5 all of that Lhe tax on that paid timely and you have now 6 filed your TOLO? 7 A I have. B O And are all those Laxes Paid? 9 A TheY are. an 1_0 O You're ?OLL has not. been paid YeL, you're on L1 ext.ension or has not. been filed? l2 A Has not been filed but has been paid- owe? 1_3 O You have paid what you believe you will L4 A I paid what I paid the previous year. 15 O Okay. 1_6 EXAMINATION L7 BY MR. WAGNER: 1B O I noticed on the explanations that we get around 19 here lots of Limes it's adjusted- Do you have an 20 accounLant t.hat helPs You? 2t A Oh, I do. There is no way I can f ile t'ax 22 ret.urns myself . I do. 23 O For example, on one plaee here it says that you 24 paid something and then you got $2,679 adjust.ment in your 25 favor. Who handled all this negotiation wit'h the INDEPENDENT REPORTING SERVICE ( 81.3 ) 225- 1.665 b2bbl 24f '3699-4bd&98t2'Ob7s89bbbf 0a Page 40 1 GovernmenL, did your accountant do that? 2 A He did. 3 O Your accountant did all this negot,iaLion about 4 ir? 5 A Right. 6 O And do f gather Ehat that you say -- belj.eve 7 rTle , I wouldntt do my taxes either. I haventt done them I since coIlege. But does that mean you,re noL just gett,ing 9 salary, you're gett,ing ot,her sources of income? 10 A I 'm receiving bonuses, yes. In t.his business 1_1 t.he lawyers pay out bonuses to all of their help at the L2 end of each year generally. 1_3 O Now, as I understand t.he significant difference L4 bet.ween a paralegal and a lawyer in a firm such as you 15 have, dD associat,e, 1et's say. The significant difference 16 is the paralegal cannot advise the client, eannoL meet L7 with the client and advise the client Lo do this and that? 1-8 A I'm noL allowed to even speak t.o a client. l-9 O You're allowed to confer with'the lawyer and 20 give your lega1 advice? 27 A Yes. I give him my opinion. 22 O And recommendations and changes just like my 23 secreLary or my 1ega1 assist.ant. does for me? 24 A And therein lies what value I have. 25 O Okay. Thank you. I}ilDEPENDENT REPORTING SERVICE (ET: ) 225-].655 b2bbl 24f €699.[bd&9642.{rb7s89bb bf0a Page 41- 1 E)(ATVIINATION 2 BY MS . SASNETT: 3 O So as far as you know right. now your taxes are 4 all up to date, you owe the IRS noLhing? 5 A Well, there was a I submitted it to the Board 6 a couple of weeks ago there was an issue concerning 7 payroll tax of Lhe company in L997. Here is what I happened. I was assessed it was an outstanding amount 9 of $87,000 owed and I met with the IRS when I got home in 1-0 2003. I worked out a pa)rment, plan with them, and for six l_1 years I made paymenLs and paid them like $90,000 over that L2 six-year period. That's where all my spare money went. 13 They att.ributed a 100 percent penalty Lo t,he Lax. I filed L4 with them in March of 2009 a petition which I submitted to 15 the Board called a petition for penalty abatemenL. L6 Basically what. I argued is I donrL have anything left to t7 give you. I paid you all the principal and interest. Irm 1-8 asking you to forgive the penalty. And I attached my bank 19 accounLs and my IRA that had been depleted and SEP that 2A had. been depleted. A11 the document,s to prove to them 21- that I had nothing left. That was filed with them in 22 March of 2009. 23 In April of 201-0 I received in the mail from t'he 24 IRS a release of federal Lax lien. And on that' federal 25 tax lien it says basically you are you have sat'isfied TNDEPENDENT REPORTTNG SERVICE (erg) 22s-1-666 b2bbl 24f -36994bd6-9542{b7s89bbbf0a Page 42 L all obligations including I think the phrase is statutory 2 additions which is interest and penalties and you are now 3 free and clear from the IRS. WeLl, they are fited wit.h 4 the Palm Beach County courts. Theyrre filed now. I 5 Look f looked up the staLutes that they cited in this 6 release of federar tax l-ien and it. meant that r didn't owe 7 them anything. That's how f took it. I thought. they 8 grant,ed my request,. 9 Then about a mont.h ago I received a let.ter from t-0 them that I don't. remember the exact wording, but it 1L was more like, weII, we reaIly didn't., you know, mean L2 that. You really stil1 owe the money. And the first. 1_3 thing it did was f couldn't believe that they would do 1-4 me. That. they would lead me down a path like that for 1-5 more than three years and come back so what f did was I 16 rolIed up my sleeves and did some research and found a L7 body of case.law that, supports my position very strongly. L8 So I responded wit.hin the L0 days that, they gave me wit.h a 1-9 petition and memorandum and I submitted it to t.he Board 20 arguing this is what the cases say. you misled me, you 2L can't, do Lhat . It's misconduct, by t.he IRS. And I tm 22 asking you once again to forgive the debt. and that's where 23 we st.and right now. 24 I do intend to argue my position. I feel f'm 25 correcL. f have Lhe case law backing me up; however, if f TNDEPENDENT REPORTING SERVICE (81-3) ZZS_1.656 b2bb I 24f €69Hbd6-9et2-0b7s89bbbfoa Page 43 L lose I will pay it. IL's that simple- 2 MR. WAGNER: Wel-I, You have appeal rights- 3 THE APPLICAIIT: I do. I don't know what they 4 are. Irm not a t.ax lawyer. I never have been, buL 5 Mr. Wagner I'm going Lo learn because f'11 be 6 representing mYself on this one- 7 MR. V{AGNER: OkaY. I MR. WEISS: Did t.hey basically say we changed 9 our mind? 10 THE APPLICANT: That's basically what they said. 11_ Could they ultimately -- weII, the courts have said L2 you cantt do that, to tax payers. You cantt teII them 13 one thing and then they rely upon it to their a4 detriment. I had a daughter in 1aw school at the 1_5 time and I was making financial decisions based upon 1-6 the fact t.hat I thought the petit.ion for abatement L7 had been granted. Serious financial decisions, 1B student l-oans, inctuding sLudent loans and t,hings 19 like that. 20 BY MS. SASNETT: 21- o I believe there was a debt to Boca CommunLty 22 ttospital? 23 A Yes. That. stemmed from an automobile accident' I 24 was in January L996. The insurance company actually 25 t.imely paid L.hem. There should never have been a lien and INDEPENDENT REPORTING SERVICE (gT:) 225-1666 b2bb1 24f -3699,4bd6-9642-0b7s89bbbf 0a Page 44 1 one of the young lawyers in the office I asked him to give 2 me hand. IIe conLacted the hospital and submitted 3 satisfactions and we sent them to the Board. 4 O So thatrs been 5 A Right 6 O t.aken care of . All right.. First Union 7 Nat,ional Bank? I A Right. 9 O This was your foreclosure the foreclosure 10 action? 11_ A Yes. There was no way financially I could 1"2 continue to make the mortgage payments on Lhe house- We 1-3 lived in a relat,ively welve always lived L4 conservatively, buE t.he mortgage pa)rment.s was an ARM and 15 by that time they were $1,700 a monLh or something. f had 16 a subst'antial amount of eguity in the home, so I basically L7 did not defend foreclosure lawsuit. I subsequently went 1-B back Lo see if there was any deficiency judgment,. There 19 was not. It was act.ua1ly a plus of $25,000. I don't know 20 what happened to that nor do I care. As long as I don't 2L owe them any money. 22 O So you didnrt owe any money to the bank, it 23 forecl-osed, and you lost any equity that was in it? 24 A Correct. 25 O There was a suit from AT&T Universal card? INDEPENDEMT REPORTTNG SERVICE (813) 225-A656 b2bbl 24f-369Hbd6-9642-Ob7s89bbbf0a Page 45 l- A Yes. That was during the same period of time a 2 credit card that I had that had an outstanding balance 3 4,000 some odd dollars. My wife and I were separat.ed at 4 the t.ime. She was served with a lawsuit. We werenrL even 5 living together. IL's sLill on fiLe today, but over Lhe 6 last number of months I 've put together exhibi.ts and 7 affidavits in a motion to set. aside that for lack of 8 personal jurisdiction and one of the atLorneys, scott 9 Hershey, in the office has that and he's in the process of 1_0 trying to contact. whoever represents iL's now Citibank, you I donrL wanL any 1_ 1_ not AT&T, to t.ry Lo work out, know, a2 litigaLion. I just, want to work ouL a settlement and pay 1-3 it and have it, resolved- 1-4 MS. SASNETT: Mr. Wagner, did you want to ask 15 something about this? L6 MR. WAGNER: No. L7 BY MS. SASNETT: l-B O Okay. But what we show was a judgmenL in the L9 amount of $7 ,449.50? 20 A That included attorneyts fees and interests. 2a O OkaY' 22 A As a mat.Ler of fact. I brought with me whaL is 23 going Lo be filed, if necessary, I hope itrs noL, what 24 wef re going to submit t,o the lawyer for the other side in 25 an attempt Eo settle. If itrs fiIed., of course, I'11 turn INDEPENDENT REPORTING SERV]CE (ET:) 225-1666 b2bbl 24f €699,4bd&'9642-Ob7589bbM0a Page 46 L it over to the Board. 2 a Okay. Do you have other delinquent, cred.it 3 cards? 4 A There was and this h/as in response to the 5 guestion and I knew f would forget. the number, L4 maybe, 6 it involved American Express. During that same period of 7 time when I couldn't keep up when you get in trouble 8 like this and your livelihood is cut off the financial 9 consequences are cat,ast.rophic. It's dif f icult for me and L0 I'm noL going to try to e>qrlain it. to you, but it's l-1 unexplainable. Everyt.hing goes into t.he red and thaL 12 included the American Express card and I dontt remember 1-3 I had a discover card as well and a Master Card as we1l, I L4 believe, and I don't remember the Lot.al amount, f tm not 15 even going to guess because f just don't reca11. The 15 you asked me to explain that again because on my L7 application t.here was no mention of that, and t.hen when 1_8 you asked me to explain it again I explained to the Board 19 that as I read the guestion I was very upset about. this 20 and I calLed Jack. I read t.he guestion, Lhe words and 2t O Five years? 22 A It blew my mind and when I went back and viewed 23 it from Lhrough your eyes f saw where there could be a 24 potential issue. I never intended I mean I knew that 25 that had been on my credit reports. I knew that, was out TNDEPENDENT REPORTING SERVICE (813) 225-1.666 b2bbl 24f€699-4bd&9542{b7589bbbf 0a Page 47 1 there and I knew t,hat you knew Lhat so 2 O So what we show is balance on the American 3 Express credit card is $11,309.53? 4 A OkaY 5 o And another American Express closed account for 6 $2L,009 and 7 A I didnrt. think it was that much, but okay' I o $.2s. 9 A The smart. thing for me to have done back t'hen 10 was Lo file for bankruptcy. The law provides for it. I 11 would have qualified for it withouL a doubt., but I had L2 this I had this hope against hope that. I would be able l-3 to pay my bilIs. So I didn't- It would have been a L4 simple matter for me. As a matter of fact, two of the 15 other lawyers did exactly t.hat. They filed bankruptcy. I 16 was so humiliat.ed. I was so embarrassed, so humiliat,ed, t7 and, I can't real1y say that I was thinking right'' I r_8 should have declared bankrupt,cy and we wouldn't even be L9 having this conversation right now, but I didn't' And 20 t.hen what. happened was prison. Separation from your 2t f ami1y. 22 O Are you and your wife sti1l marri-ed? 23 A Oh, yeah. At, our age it''s you know all Lhe way 24 to the door. 25 O Arrd where did she go live when you lost your INDEPENDENT REPORTING SERVICE (813) 225-L666 b2bbl 24f -3699-4bd6-9642'Ob7s89bbbf 0a Page 48 1 home? I assume you were in prison by then? 2 A She got an apartment and through Ehe financial 3 assistance of our beautiful mothers we were able to make 4 iL. Both mothers are still alive today. 5 MS. DOYLE: When you were released from prison 6 did you immediately start working as a paralegal? 7 TIIE APPLICANT: No. I t,ried desperately, it I took me four months to get a job. I canrL t.ell you 9 how many resumes I sent. ouL, but. as you can imagine 10 there was a }ot, of explaining to do, and then .Tanuary Ll_ of 2002 on a Sunday I happen to pick up the Boca L2 Rat.on News and saw an article for lega1 secretary and l_3 I answered it. I faxed my no phone number. I L4 just faxed my resume in and I found ouL, one of great 1_5 strokes of luck to me I received a phone call Lwo L6 minutes later from a guy named Richard Stephens, dr a7 att.orney. He is a security arbitration SCC, LLM, Phi 18 Beta Kappa Corne1l. I mean he's the whole pedigree L9 and I learned a new word. I met him and he t.old 20 me f told him everything and he just was agape of 2a t.he whole story, but he could telI from my resume 22 that there was something there. I just, laid it ouE 23 to him and f learned a new word. He tol-d me that he 24 was going to make me his mitzvah and he did. He did. 25 IVIR. WAGNER: A whal? TNDEPENDEN? REPOR?rNG SERVTCE (8L3 ) ZZS-1_556 b2bb I 24f€6994M&9642.0b7589bbbfoa Page 49 1 THE APPLICANT: MiLzvah or his good deed and he 2 did. I was wit.h him five years- He was wollderful- 3 MR. WEISS: Is t.hat, like bat' mitzvah? 4 MS. DOYLE: Well, iL is- Mit.zvah is out of 5 responsibiliLy or good deed- 5 A And we laughed because he t,ook me in and I 7 didn,t, know anything about securities arbitration and he B didn't know anything about. Lrying a case. So iL was a 9 very symbiotic relationship. He's just a wonderluI person 10 and st.ill is. Werre still very close. Although he semi l-1 retired in 2005, otherwise, I would st.ill be with him. 1,2 And. he just paid me more and more and we had fun, his l_3 resulLs were phenomenal and he's just a great guy. 1-4 BY MS.. SASNETT: 15 O Okay. It looks like there was an issue with an t5 automated debit for life insurance premium thaL caused an L7 overdraft. charge? 1-8 A Yeah. That was just my fault. My wife has a L9 debit card. to Lhe account although Irm not going to blame 20 t.his one on her. This was my faulL. I generally monit.or 21 the bank account statements and I just, blew it. And, of 22 course, I got a lett.er and t.hey reguired me to send in 23 three monLhs wliich I did and t.here has never been any 24 situation about that. 25 O That was APril of 2009? TNDEPENDENT REPORTING SERVICE (813 ) 225-1"566 b2bbl 24f€6994bd6-9642-,0b7s89bbbfoa Page 50 L A Yes. 2 O So that was three years ago. But, then there was 3 an overdraft charge for from the, bank for that? 4 A Right 5 O Okay. Iret,s seer 1rou are current in payments 6 for two credit cards. Do you know if you have out,standing 7 balances at this point? I A I do. On one credit card. I have an out.st.anding 9 balance of abouL $2,700. On one credit card f have an l-0 outst,anding balance of, unfortunat.ely, about $L4,000 which 1- 1- I'm working on. L2 0 Are these cred.it account.s that have been L3 building up or how did they get to these levels? L4 A Well, the smaller amount was my daughter is an 15 authorized user. I didnrt come here to put any blame on 1,6 anybody else just so Ilm c1ear, but my daughEer was in law L7 school and shets an authorized user and it sort of got 1-8 built the credit,, Lhe amount owed sort, of built up. 1_9 The ot,her one is a credit. card that it's my mother's 20 $l-4,000 she made me an authorized user. I had no credit, 2L when I came home. And initially f sLarted paying bi1ls 22 when I wasnrt earning enough money and over the years I 23 just have not ret,ired it. - BuL it,s on my list of things 24 to do. 25 O And you have an auLo loan? TNDEPE3IDENT REPORTTNG SERVTCE (8].3 ) 225-7665 b2bbl 24f €69Hbd6-9642{tbz58gbbbf 0a Page 51- 10 1 A I don't any more, flo. one car we drive is a one, 2 year old volvo which I own outright., and the other leases 3 the other automobile is the car that t,he law firm 4 for me. was 5 O Let's see, a credit report' showed that' there 6 an auto loan wit.h a balance of $1-0,800? used 7 A Yes. Previously I made an auto loan for a was B Mercury Mariner SUV, which I kepL and never Cred'it 9 delingr:ent. Prior to Lhat, an auLo loan Ford Motor The volvo I 1_0 for a Ford Escape and kept that current. when she was at UF- I 1_ l- initiatly bought for my daughter and L2 financed that through Road Loan which became santander 1_3 I paid it off. We stilI have the car' L4 A Okay. So that' $l-0,800 has been reLired? 15 A Yes. L6 0 And then You have a mortgage? L7 A I do- that? 1_8 0 A balance of 2L4,OO0 or about wit.h 1_9 A Itrs about 211-,000 now. It was originally 20 Fremont, who sold Lhe paper to Live Alone, who sold the 2L paper to Ocwen and it's current. Never been delinquent on 22 a mortgage Payment. 23 0 And Your wife is st.il] working? 24 A she is. wetre boLh 65 and both still working, 25 right. INDEPENDENT REPORTING SERVICE (81.3) 225-L666 b2bbt 24f €699-4bd6-9642-Ob7s89bbbf0a Page 52 L O And are you stilI supporting your daughLer? 2 A Sort of. She graduated from Cardosa L,aw Schoo1 3 in New York last year. It, took her almost six months Eo 4 find a job believe iL or not. And she did find a job at, a 5 law firm up in New York- She's noL really making a lot of 6 money. She doesn't really care, she's working. So my 7 support of her is slow1y weaning. I O Is she your only child? 9 A I have an older daughter by a previous wife. 10 She's also an attorndy. She lives in Naples. 1-1 I\,IR- WAGNER: I didn't hear the last. phrase. L2 THE APPLICANT: She's also an attorney and she 1-3 lives in Naples. L4 THE COURT: That's what I didntt here. 1-5 THE APPLf CAIIT: A member of the Florida Bar. L5 BY MS. SASNETT: 17 O Okay. Letts see about this. I guess wetve 1-8 talked about t.he Al1ied Fidelity Insurance Company? 19 A Okay. 20 O Harry Eaken is liguidated? 2t A That, was the Allied Insurance Company. They 22 filed suit. and I settled it in L995 for a payment of $500. 23 0 Then it looks like you were admitted to the 24 Maine Bar? 25 A I was. INDEPENDENT REPORTING SERVICE (813 ) ZZS _1-555 b2bbl 24t€699-4bd6-9642{b7589bbbf0a Page 53 1 O And, there was an issue t'here with the let's 2 see, stay in time here- do law in 3 Ms. DoYLE: Do you want Lo practice or 4 Maine? but 5 THE APPLICANT: NoL in the winter time, Lhings 6 uLtimat.ely as I slow down once I can get to 7 resolved actually I would. Act.ually I would like I spend sometime up there and we have vacaL,ioned up 9 there. whaL L0 MS. DOYLEz If you,re admiLted in Florida L1 do you want to do? L2 THE APPLICAI{T: I want t.o do exact'ly what' I 'm L3 doing now. I want t.o remain here. The guys I work a 14 for know everytLring about, this . I havenr t wit'hheLd 15 thing. They support me a thousand fight' L6 MS. DOYLE: You would sLaY that firm? !7 THE APPLICANT: Absolutely- Absolutely until 18 t.heY carrY me out - 19 BY MS. SASNETT: 20 O Would Your role change? 21- AYes.Iwouldbeanatt'orneytryingthecases. 22 MR. WEISS: Talk t'o client's. 23 THE APPLICAI{T: Talk t.o c].ients for Lhe first a 24 time. I've got to tell you that's rea11y kind of 25 benefit not. having to speak to these clients. okay. TNDEPENDENT REPORTING SERVICE (AT:) 225-1.555 b2bbl 24f €699'4bd6'9642-0b7s89bbbf0a Page 54 L So I love it. They come in, I go in my office and 2 they go in t.he conference room. It.ts great. 3 BY MS. SASNETT: 4 O Okay. You were affiliated with the Law Firm 5 Sonn &. Erez? 6 A Yes. 7 O Did you actually move to Maine and work Lhere or 8 no? 9 A No. Would you like me to explain how that whole 10 thing came about.? 11 0 Yes. I would like to hear that. 12 A f I 11 try t.o give you a condensed version, but, it 1_3 is a lit,tle involved. In April of 2AO9 f was working with t4 Sonn & Erez. I studied for the Florida Bar, but. I was l-5 waiting for the restoraLion of my civil rights, as you L6 know I cantt even file my application until my civil 'J.7 rights were restgred. The application had been pending 18 for two and a half years. I was counting the days hoping L9 thaE it would be Lhey would be resLored before the ,Ju1y 20 Bar exam of 2OOg. In April of 2OOg I recej-ved a phone 2a caII from an attorney t,hat said I better pick up the 22 Florida Bar News because a subcommittee of the Florida 23 Board of Bar Examiners apparently were making the 24 recommendation that guys like me that had made a mist.ake 25 and were convicted should never ever, ever be permitted to INDEPENDEMT REPORTING SERVICE (ETg) 225-L556 b2bb1 24f€69+4bd&9642.0b7589bbbf0a Page 55 l" practice law in Florida again. Wow! It seemed to me like the 2 it was a sure thing, the thing was going to pass from 3 comments in t.he Florida Bar article. I was devastated' out 4 What I did was I immed.iately did some research to find are 5 what states you don'L lose your civil rights, Lhere I mean 6 act.ua1ly a number of Lhem. Maine is one of them. that' 7 I didnrt have any inLentions of doing t,his before ' I So what I did was I contacted Maine and made sure I was f an 9 right about t.hat - I looked at their rules and iled took the 1_0 applicat.ion just under the deadline. I 11 immediaLely started frantically sLudied for the Maine Bar' L2 FIew up there in Portland Lhe last week of iluly, Look the l_3 Maine Bar exam and then right after that I flew to Indiana t4 to visit my mother. She was 84 at the time. And the same guy 1_5 nightr I got there I got a phone call from the He said 1_6 that. said., Don, you're not going Lo believe this. L7 the proposal by the subcommittee was rejected by the Bar. everybody one aL a 1_B Their position is they're going to take t9 time and make their decision. There is no need for a rule 20 like that. so here I am. I no longer have the problem- 2L I d.on't have my civil rights restored YeL, buL I'm into it' 22 alread.y. I just t.ook t.he Maine Bar exam and Irve never 23 been one Lo just drop somet.hing. so I st'ayed the course ' passed 24 In Sept,ember I received a letter t'haL I 25 the Main Bar. I then contacted them to find out when the INDEPENDENT REPORTING SERVICE (ET:) 225-L666 b2bbl 24f '369Hbd&9642-Ob7589bbbf0a Page 56 1 f itness hearing would be. We set up .Ianuary and in the 2 interim that December 2009 I got. my civil rights restored. 3 So now I could Lake the Florida Bar exam, but I had some 4 unfinished business with the Maine Bar. 5 MR. WAGNER: TeI1 me what you mean by fitness 5 exam. 7 THE APPLICAI{T: They had their progedures are I a Iitt1e different than yours. They have a Iot 9 more there is no mandated public hearing, but r-0 there is a public hearing if they want one. So it's l_ t_ sort of they make the decision what, they wanL to do L2 depending on the individual, but it starts wit.h this . 13 It starts wit.h this. So I have been through this t4 with Maine. We s,et up in ,January. I went up there l-5 and was interrogated just like this with the l_5 documenLs that I submitted and I have submitted to L7 you, and by the grace of God they said they had done 18 enough communj-ty service, and had done enough over 19 the years, and I was sworn in t.he next. month 20 February 20LO. But f never did anything with the 2L license because I started. at Scarlett and Gucciardo 22 just then and we didn't know what I could do, if 23 anything, with a Maine license. It t.ook me guite a 24 while, but I- think I read every ethics opinion, every 25 Florida Supreme Court opinion and the rules l-0 t.imes INDEPENDENT REPORTTNG SERVTCE (813) ZZ5-1,566 b2bbl 24f €69Hbds,9642.Ob7589b bbf 0a Page 57 1 and I decided that there was absolutely nothing I 2 could do wit.h the license. In other words, I canrt 3 sit in a Florida office and dispense legal advice. 4 so Irve done nothing wiLh it. I have the license. I cLE 5 keep up my cLE credits. I'm still reguired to do the 6 up there. And so once that was done then I took 7 Florida Bar exam- up 8 MR. WEISS: We were t'alking about the issue 9 there Sonnrs lett'er 10 THE APPLICAIIT: Yeah, the letter from -- a he said 1_1 shock. It's difficult. for me to explain how L2 t.hese things. I'm both outraged and Itm really hurt 13 because I gave this guy everything for three years. L4 I mean everYthing- 15 BY MS. SASNETT: 16 O How d.o you mean you gave him everything? L7 A I worked so hard for him it's unbelievable' 1-8 Jef f sonn is the type of guy that doesn't come in the L9 office until 10:30 or 11-, many times not. until noon, on 20 occasion not unt.il-'two or three and sometimes not' at all' 27 He woul-d assign me the review of cases, account 22 statements, t.hat, would have t.o be reviewed t,o find out the 23 issues to file a statement of claim. I woul-d do that for 24 him. If he d.ecided a staLement of claim was to be writt'en 25 I would prepare a draft for him and put it on his desk- TNDEPENDENT REPORTING SERVICE (81-3) 22s-a666 b2bb1 24f -3699-4bd&9642-ob7589bbb{Oa Page 58 1 Motions to.compel I would draft and put on his desk. 2 O And this is where? 3 A At Sonn and Erez, ,Jeffrey Sonn. 4 0 Here in Florida? 5 A Here in Florida. 6 O For? 7 A Jef frey Sonn. 8 MS. DOYLE: So he was angry because you went 9 with the other firm? That's what it sounds like to l-0 me. 11 THE APPLICAIIT: I think so. I went with a L2 competitor when I resigned I said, Jeff, I just want L3 to part ways friends. But because f'm going with a L4 compet,itor do you want me to leave today, I'm fine 1_5 with that.. If you wanL me to st.ay two or three weeks L5 I'm fine with t.hat. I just want to leave as friend. L7 MS. DOYLE: He thinks you took t,he client list, 1_8 right ? 19 THE APPLICAI{T: Which I never did, which is 20 just which he submitted a letter to Maine 21_ admitting t,hat f never did ultimately which is 22 cont,rary, but when I left, Ms. Sasnett, I yourre 23 asking me what I think, I think I l-eft, t,his huge void 24 because I was working on about. 40 different 25 securities arbitrations cases at any given time under INDEPENDENT REPORTING SERVTCE (gT:) 225_L666 b2bbt 24r€69Hbds9642{b7589bbbloa Page 59 1 his supervision of course- I would just do the 2 drafts and give it t.o him. so when I left he didn't 3 have t,hat - He didn't have that any more. I worked 4 very hard. I was very proud of what I did and they 5 came to me and asked my opinions and strategies and I 6 jusL really enjoyed it. And when I received that 7 from Maine T was flabbergasted. so r contacted know B individ.uals, obtained the affidavits, and you 9 the rest. 1_0 BY MS. SASNETT: 11 O So he says you wrongly offered a referral fee? L2 A That.rs absolutely an outrageous accusation. As 13 a maLter of fact, r know the individual there was an L4 attorney t.hat worked for him at t'he time that actually was 15 Lhere when sonn offered him a referral fee to steal 16 business from -- it.'s such an outrage from another lawyer, L7 Scot,t. Silver. 1_B O And Lhe USB keY L9 A Never, 20 MR. WEISS: Don't cut things off . 21_ A I'm so sorry. This is the one subject that' 22 Thanks, .John. No. 23 BY MS. SASNETT: 24 O So you did noL give a USB key to an aLtorney to 25 use Lo copy information from -- TNDEPENDENT REPORTTNG SERVICE (81-3) 225-1'666 b2bbl 24t€69$,4bd6-9642''0b7s89bbbtua Page 50 t A r did not. 2 O his computer? Ts there more you would like 3 to say on your behaff about that? 4 A All the allegat,ions were false from the very 5 onset. Maine agreed wi.th me. 6 O I see it was dismissed? 7 A It was without any hearing, withouL any -- I I offered t,o go up there and be placed under oath numerous 9 Eimes. 1_O BY MS. DOYLE: 11_ O May I ask you, your background is criminal L2 defense work. hlhere did you learn did you just st,art 13 from scrat.ch with securities? 74 A Yes. I knew not.hing about securities, nothing 1_5 until Richard Stephens brought me in. r didn't know 1"6 what I didn't. know anything about Lhe security a7 arbitration process. I didn't know anything about that. 1_8 And I just learned. 19 O That was just where the opportunity was and you 20 taughL yourself? 2L A That's right, but f immediat,ely knew that I 22 rea1ized t.hat Richard Stephens was genuine, hers a 23 brilliant lawyer. ,fust. a brilliant lawyer, and I wanted 24 to work for him. 25 MS. SASNETT: Do you have guestions any of INDEPENDENT REPORTING SERVICE (81.3) ZZ5-1.555 b2bbl 24t{699-4bd}9642-Ob7589bbbf 0a Page 6L L you have questions? 2 MR. WAGNER: No- 3 BY MS. DOYLE: 4 O You mentioned communitY service? 5 A Yes. 6 O Can you briefly describe the community service 7 you've done? I A Yes. I got home on September 2'l'st, 2007, within 9 a couple of weeks even before I got employed in 'January of l_0 2OO2 I conLacted Habitat for Humanity and I began bet,ween four and 1_ l_ volunteering on the weekends. Generally L2 eight. hours one day a week for HabiLat as you know they 1-3 construct homes for t.he less than privilege. I did Lhat 1_4 for five years. And Irm proud to say I participated in 15 helping to build 21- homes. I did everyLhing from shingle L6 a roof to dig a sewer trench. I enjoyed it. I worked 77 very hard and then after five years'that was I told 18 myself that was enough from there, there was a hiat,us of L9 time where I was stud.ying for the Florida Bar. Now, for 20 the last 16 months Irve been volunteering at Boca Helping 21" Hands in the kitchen on Saturdays from B a.m. to anln.rhere 22 bet,ween l- and 2 p.m. And that, is work- But iL's 23 enjoyable. so I have probably close to a 1,500 hours of 24 communiEy service. Itve given blood L6 times. It would 25 be d,ouble that if I wasn't taking a medication for a INDEPENDENT REPORTING SERVICE (813) ZZS-L566 b2bb1 24f €6994bd&9542'0b7589bbbf 0a Page 62 1 period of five years. f Lry to do other things. Every 2 time I go to CosLco or the store I pick up a box of cereal 3 and give it to t,he poor. Several years I collect, money 4 and buy Thanksgiving turkeys to help support a child in 5 BrazLl. I have a Iot more to say at the appropriate time. 6 MS. SASNETT: hlel1, f 'n sure Mr. Weiss will 7 bring these t.hings out. 8 . MR. WAGNER: I have a guestion. 9 MR. I{EISS: This not,ice to appear told us that 10 this isnlt a rehab. 1_1 MS. SASNETT: So we'll do that at another time. t2 MR. WEISS: Werl1 do that at the formal, buL, of L3 course, het1l answer anyt,hing that. y'aI1 ask. L4 BY MR. WAGNER: l_5 a The disclosure mat,ter Judge Schwartz, who led L5 that commission, that recommended that L7 A Yes, sir. 18 O He and I pract,iced law together for abouL five L9 years. So we know each oLher and f know him. BuL he made 20 a stat.ement that, said, quot,e, having one civil right,s 21 restored is almost an aut,omatic t,hing. And I noticed it 22 t.ook a long time for you, and I have no idea what, the 23 process is involved. Would you please t.ell- us do they go 24 through this quesEioning and answering and all kind of 25 stuff or just a TNDEPENDENT REPORTTNG SERVTCE (813) 225-L666 b2bb1 24f €6994bd6-9642-Ob7589bbffi a Page 63 1 A Although t.hey have the right to ask you Lo 2 appear before them for the Clemency Board thaL has 3 jurisdiction and I have argued before ,fudge Schwartz and 4 he's a brilliant jurist. 5 0 Okay. 6 A IL's you submitted information and Ehe 7 documentation and they have their own inhouse at least' I at the Lime I understand that. Governor ScotL has changed 9 even that a Iittle bit. But you submit all the 1-0 information and Lhey make Sure thaL you haventt hurt 11 anybody or committ.ed any super violent. crime or sexual L2 related crimes. They have various classes or phases l-3 classes. I, of course, was in the best. class. And then L4 it's just a matLer of being inundated with so many it 1s takes so 1ong. 1-5 O Are you aware whether or noL there was any L7 person who objected Lo your civil rights being restored? 1_B A No, Itm noL. L9 O You jusL don't know? 20 A I just don't know. 2L MR. WAGNER: OkaY- Thank You. 22 MS. SASNETT: Anything further? This will 23 conclude the Board's questions. Now is the time for 24 you to make any statement or present any evidence, if 25 you wish. None is reguired. INDEPENDENT REPORTING SERVICE (ET:) 225_1-665 ' b2bbt24f-3699,4bd&,9642-Ob7589bbbf0a Page 54 1 MR. WEfSS: Wer11 be brief. 2 E)(AIVIINATION 3 BY MR. WEISS: 4 a Let's Lalk about Mr. Sonn for just, a minute. 5 A Okay. 6 O You mad.e him a Iot. of money, didnrt. you? 7 A I sure did and happy to do it. B O How long was iL aft,er you left. his employee that 9 he wrote t,he Maine Bar? 10 A I left his employ in February of 20i-0, so about 1L a year. L2 O Okay. And were you able to rebut some of his 13 allegations by affidavits from lawyers that have worked 14 with him? 15 A I was, ,fack. I was able to rebut all of his L6 accusat.ions by affidavits that lawyers t,hat worked with 17 him, yes. 1B MR. WAGNER: That's al1 part of this record and L9 Ilve seen Lhose affidavits. 20 MR. WEISS: Yes. 21 BY MR. WETSS: 22 O You said I cannot. speak t,o a client? 23 A That,'s right. 24 O fn Florida? 25 A Correct,. INDEPENDENT REPORTING SERVICE (8]-3) 225.1,666 b2bbl 24f €69$4bd&9642-Ob7589bbbf oa Page 55 1 O Why cannot you speak with clienLs? 2 A Because the rules specifically prohibits me from 3 speaking to a client. 4 O As a d.isciplined lawyer working for a law firm? 5 A Correct 5 O Do you know Lhe name of the rule? 7 A 3.6-1. I O There You go 9 A I only do affidavits every guarter for the last 10 10 years. 11_ O That was my next question- Does thaL rule L2 require quarterly reporting? 13 A It does and I never miss. L4 O And have your emPloYers comPlied? 1-5 A They have. L6 O Have you ever received any inguiry from the Bar 1"7 that you have not been in compliance with Lhe Board.? 1-B A NO. 1_9 0 Okay. Now, letrs go back to the 565,000- 20 A AII right. 27 O You started depositing it on a Friday and t'hen 22 you finished t.he deposiL on a Monday? 23 A r did. 24 O Did you filt out the appropriate IRS forms? 25 A AbsolutelY. INDEPENDENT REPORTING SERVICE (81-3) 225-1-666 b2bbl 24f-369Hbd&9542-{rb7589bbbf0a Page 65 3- O And there are $10,000 cash forms that you have 2 t,o fill out? 3 A Form 8300 over 10,000. 4 O Were you not, by filling out. those forms 5 informing the United SLates Government, that you had 5 received $555,000 in cash? 7 A Sure was. I MR. WEISS : Okay. That ' s all- I have. 9 MS. SASNETT: This will conclude the hearing. 10 The panel will make a recommendat,ion to the fuI1 L1_ Board and you will be notified of the action in L2 writing within seven days. 13 THE APPIJICAM: Thank you. 1"4 MR. WEISS: Thank you very much. 15 MS. SASNETT: Good luck to you. L6 MS. DOYLE: Good luck. L7 MR. WAGNER: Thank you very much. L8 THE APPLICAIff: Thank you. L9 (Thereupon, these proceedings were concluded. ) 20 2L 22 23 24 25 INDEPENDENT REPORTING SERVICE (813) 225-7655 . b2bbl24f€599'4M$9642{b7589bbbf0a Page 67 1_ CERTIFICATE 2 STATE OF FLORIDA ) 3 COUNTY OF HII,LSBOROUGH) 4 I, Gina M. Herrera, Associate Court Reporter 5 for the Circuit Court of the Thirteenth Judicial 6 Circuit of the State of Florida, in and for 7 Hillsborough CountY, 8 DO HEREBY CERTIFY t,hat, I was authorized to and 9 did., through the undersigned Reporter, report in 10 shorthand the proceedings and evidence in the L1 above-styled cause, ds stated in the caption heret,o, L2 and thaL the foregoing pages, numbered l- to 65, l_3 inclusive, constitute a t,rue and correcL 74 transcription of said Reporter's shorthand report. of L5 said proceedings and evidence. L6 IN WITNESS hIHEREOF, I have hereunto set my hand L7 in the City of Tampa, County of Hillsborough, State LB of Florida, Lhis 4Lh daY of ,June, L9 20L2. 20 2l 22 23 24 25 INDEPENDENT REPORTING SERVICE (B]-3) 225_1,655 b2bb1 24f €699-4bd6-9642-Ob7s89bbbfoa Page 58 A 7:12,1,3 8:6,L3,L4 18:13 28:4,8 63:3 aurthotized,L:22 50:16 63:11 argung42:20 50:15,17,20 67:8 abatement 4l:1,5 t0:5 L1:4,7 17;9 anymore VL:13 argament?A:6 auto 50:25 5t:6,7,9 43:16 28:7 45:7 59:8 anyway 22:L4 arguments23:25 automated 49:16 Arbbelll:?tt 6:1,2 64:13,L6,19 65:9 ARM44:14 automatic 62:21 6:?37:7 8:5,18 afliliatcd 54:4 apartuent48:2 apparently 16:19 Aronow 22:9 automobile43:23 Ll:20,2t 12:10 aftnrnoan22:19 arranged 16:21 51:3 l8:419:5 28:7 agape4S:20 54:23 47:23 appeal43:2 arrest 15:.24 Aviation 31:19 32:21 age4;17 Appeals 13:18 arrested 6:L0,15,21 32:3 able47:t2 48:3 ago 19:19 25:L8 42:9 30:15,19,19 8:5 10:20 aware 63:16 64:12,15 29:1 4l:6 appear 36:t262:9 article43:1255.,3 awtul7:20 11:21 above-styled 67:ll 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tryingT:l,L8 Z7:25 USB 59:18,24 wanted 9:25 L4:19 talked 52:1.8 three 16:13 L7:L6 45:10 49:8 53:21 ase6:2410;7 32:5 60:23 talking4:16 20:17 17:17 42:15 49:23 turkeys 62:4 59:25 wasn't37:9 50:22 20:19 57:8 50:2 57:13,20 tarn45:25 user50:15,17,20 61,:25 Tampa 1-:75,25 58:15 turnd9:7 usually34:4 watch 1,2:1,2 4:10 67:17 throw 14:10 Twice3:19 U.S 18:15 24:20 watching 18:10 taught60:20 time 1:16 4:13,20 two6:2,2,4,6,17 28:329:6 way9:15 19:10 tax33:6,635:16,25 6:L6,?.0 8:L3 9:25 7:109:12,13 39:2144:1147:23 INDEPENDENT REPORTING SERVICE (81-3 ) 225-L666 Page 78 ways 58:13 words 14:1237:6 35:9,1136:L0,2L 66:6 19937:lL 8:91512 weaning52:7 46:?.0 57:2 37:3,15 4l:11 $59,000 35:2L 1.5:12,L3 29:2 week55:L2 6l:12 work 5:2324:13 42:15 46;2149:2 $6,096 37.'?.O \9955:12,16 35:16 weekends 34:17 34:6,16 38:10 50:2,22 54:18 $7,000 35:22 36:23,23 52:22 61:ll 45:ll,l2 53:13 56:19 57:t3 6l:L4 fi7228 36:18 199635:21.43:?A weeks 9:2,2 4I;6 54:7 60:12,?-4 6l:17 62;1,3,L9 $7,M9.6045:19 t997 35:17 4l:7 58:15 61:9 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36:11 8419:15 55:14 9 92:6 90s 20:19 90's 6:5 93-047029:Ll 95 36:1 9636:L INDEPENDENT REPORTING SERVICE ( 81.3 ) 225 _1656 s BOARD OF BAR L BEBORE THE FLORIDA i-.--.-..r.rl_. RE: Application of ) ; IIt[ File No. 30380 Donald L. Ferguson ) For admission to The Florida Bar ) I ) TO: John A- Weiss, Esq' 2937 Kerry Forest ParlovaY Suite B-2 Tallahassee, FL 32309-17 50 TI{EFLORIDABOARDoFBAREx4Iym\tERsrequestsyourapPeTTleforan b3 afnlicutio' under nil.e 3-22' Rules of investigative hearing in support ,;;lient's "f to the Bar' ,fr" ioir"*e Court ntt"t*g to Admissions Theboardwishestoinquireintothefollowingissues: l.Thefactsandcircumstances,includingthefinaldispositions'surroundingthe to Item 19. of yo,r s*om Florida Bar Application incidents discrosed by you in response as amended. your re{rruti9" from the practice of 2. \\efacts and circurnstances surrounding District of Frorida, and yo,r suspension from law in the state oiHoria, *a trr" so"trr"* the Eleventh circuit court of Appeals' the Fifth circuit coort oreppeals and and current stahrs circumstances including the final dispositions 3. The facts and of your by you response to Items L4'' L6'a" and 17' surroundirrg Ur"1t *, ai*"tosed T amended' swom Florida Bar Application as 4.Yourcompliancesincelgg5withyourlegalobligationtopayfederalincome tares in a timelY manner' 5.Thepresentstafusojvor:rfinancialobligationsalongwiththefactsand obligltions with American Express and circumstances causing you to *J*?ri"q"r"t obligations' your efforts to satisff thot" delinquent ,i surrounding each circumstances including the final disposition 6. The facts and 101' of your ,"Lpf"i"t filed against you as disclosed under Item grievance o, "rti., I*o* Florida Bar Application as amended' i John A. Weiss, Esq. I April ,t^ Wl$Ie,:,1*t r'iYi- -r' l1 Pase2 I .-w r.r;. ..-... ..,.., j You are advised that this initial appearance before the board is solely an investigative function of the board as to the concems listed above. The board will consider any evidence of your rehabilitation your public formal hearing. Attached and incorporated into this Notice are the Notice of Rights and Responsibilities, and the Procedures for Scheduling Investigative Hearings. your client,s investigative hearing will be scheduled in accordance with the pr*irio* of the Procedures for Scheduling Investigative Hearings. Your client's Florida Bar Application requires him to keep his responses to all questions on his application current by filing timely arnendments until the date of your admission to The Florida Bar. The board encourages your client to review his bar application for accuracy including responses regarding residence, mailing address, driver's license number, employer, ffid credit information and promptly file any amendments necessary. DATED this 126 day of April,z}l}. FLORIDA BOARD OF BAREXAMINERS By: Arthur Pobjecky, Counsel orida Board of Bar Examiners 1891 Eider Court i Tallahassee, FL 3l3gg-1750 (850) 487-1292 TAP:acb:lac Enclosures: Notice of Rights and Responsibilities Procedures for Scheduling Investigative Hearings Schedule Hearing Request Form Copy: Michele A. Gavagni, Executive Director Certified Mail No.: 7011 0110 0001 7038 2402 Retum Receip Requested \ t U.S. PostalService.* rU CERTIFIED MAIL- BECEIPT E if (Domestic Mail Only; No lnsurance Covenge ru For information visit our websile EO -,ij,r::ifrlfrl m . .' t, n l.: :.;t r: ;j'ri I, E - rL Postage $ -I EI Certtfied Fee trl iiDc' Postmark ReturnFlscelotFe Here tr .ndorsemenl Re(uired) El jlstricted Delivery Fee r" \.',idorsement Requked) r:l E Total Postage !' E^^^ e rl Wess, Eso. rC JonuA E 2937 Kennv Fonest PeRIolvRv rL Na or PO Box No, SUITE B.2 ,'rALLAHASsEE, FL 32309-7q00 -ri .,+' PS Form SENDER: COMPLETE THrS SECIIO/V COMPLETE IHIS SECflON ON DELIVERY r Completo items l, 2, and 3. Also complete A. E Agent item 4 if Resticted Delivery ls desited. x r Print your name and address on the reverse so tharLwe can retum the card to you. B, Received by ( tuinted Name) Delivr r Attacffthis card to the back of the mailpiece, L,{1r4,tll. or on the tont tf sPace Permits' w D. ls detfuery address dlftt€nt from ltern 1? trl Yes 1. Article Addressed to: lIYES, enter delivery address below: El hlo JosnA WEtss, Eso. 2gaZ KennY FoREST PemaruRv Sure B-2 3. TALLAHASSEE, FL 32309-7800 Cartifed Mall E E(DdMd El Reglstered Ed.a,.n"""lpt E lnsured Matl tr c.o.D. "$ Deliverfi (ffiafte) til Yes V e.c DJ o 4. Restricted 1v lr trloriUs EosrU otftur @xsminerg ADI,IINISTRATIVE BOARD OF THE SUPREME COURT OF FLORIDA NOTICE OF RIGHTS AND RESPONSIBILITIES BEFORE THE FLORIDA BOARD OF BAR TO: APPLICANTS AND STUDENT REGISTRANTS APPEARING CXAUINENS FOR INVESTIGATIVE HEARINGS boatd, or a Division of the Board, for a tactual inquiry into you have been requested to appear personary uetoq[3 fitness to prac'tice raq. is a notice of the specific matters that may affect adversery your cnr.alt"r and {tfched desires that you be tully informed of your rights and issues that are ot *n""in to [n6 uoara.'-in"-u&ro responsibilities, particularly the fcllowing: you have the right to be accompanied by any other You have the right to be represented by counsel and 1. each appticant t9 be personal and confidential and person ot rnl uoaro conliaer" t" ca""bt vor, extent thai an applicant waives confidentiality' The conduc-ts the proceedings""nol"ing, accordirgry';i;;pt *" .,: and student registrants before the board: folowing attorneys are prohibitea tro#r"prliLnting applicants employees of the board may not represent any Members, former members, emptoyees or.former a. leasi three years after the termination of the applicant in proceedings uetoie-n'e uoara until at with the board' relationshiP Board membefs law firm may not b. partners, associates or shareholders of any board or Emeritus ,"p*"ni any appticant in proceedings beforelhe.board' may not represent any applicant in proceedings Former members of the supi"r"'6"rrt or Rorua c. term on the courl the board until at least two years after the end of treir before may not represent any applicant in d. cunent members of The rroria'a E"r Board of Govemors proceed-ings b"fo.= tr" Po".d i for the board, such as special counsel or drafting, FUriAa Bar members who have performed.services e. not represent any appticant in proceedings before research or grading gar Examinatdn questions,. may ot the last proiect for the board' the board unit at 6ast tt r"e ye"o an"i completion of the board, the dress for bar applicants appearing For the guidance of those unfamiliar with the traditions 2. an attorney appearing in courl before th; board should be the same as that of in your own behalf retevant to the subject matter of 3. you may present witnesses, affidavits or other evidence the inquiry. disclosure and to answer candidly and kuthfully atl you will be under oath and you have the duty to make full 4. will be present to record the proceeding' questions relating to your application. A fi,t reporter that formal charges should be ftled' a formal hearing A.fter the investigative hearing, if the board determines 5. may be used as evidence' wittbe neU atit[ir'Voriinruttigative hearing testimony hearing panel' to disqualifl m?Ibe(s) of the boa$ from sitting on the An applicant may move in uTlng 9ny. and 6. basis'relied on to show grounds for disqualification it The written motion to disqualifo "ttrlr "irEEinl^t "t "ror designee will rule upon the sufficiency of the motion' shalt be ,"rm"o"[v i[" ,jpnEi,i rr'" u"lres chair to The Florida Bar, by hetping resolve relevant burden of establishing your eligibitity for admission 7. The -eirv response during your hearing may be deemed questions, talse] misieading o, ,"&;th til. "u""iu"of a prabticing attomey and may be grounds for a inconsistent with the truthfutness ,nh onoor r;quired and fitness for membership in The Florida Bar' finding uv ne"uoaiJ of a lack of tne iequisite character 3r.a ftottUe Gost[ otfiut @xemifiwi ADMINISTRATIVE BOARD OF THE SUPREME COURTOF FLOR]DA €*?\=Y PROCEDURES FOR SCHEDULTNG INVESTIGATIVE HEARINGS BEFORE THE FLORTDA BOARD OF TO: APPLICANTS AND STUDENT REGISTRANTS APPEARING enn EXAI,IINERS FOR INVESTIGATIVE HEARINGS hearings: Below is a list of upcoming dates and locations for scheduling April 27-28.,2l|12 Tallahassee, Florida t5ay {8-'1912l|12 Tampa, Florida July 1i14r 2012 Orlando, Florida weeks in advance of the requested your written request br a hearing date must be received at least two urne $iso aaministrative cost pursuant to rule 3.-22-1, Rules of the date and must be ,;;di"d at C;; n"[tinJ'io Admissions to the Bar (Rules) available on the board's website ;il,"-,; bSOq.lASAZ2' Fatcd materialwill be promptly www.floridabarexam.org. Your request maybe faxed to date request by fax, your check should prompfly follow acknowtedged by mail. lf you submit your fiearing by regular mail. on a day immediately before the scheduled lnclude in your written request whether you are availabte hearings on additionar days. Hearings are hearing dates in or" tnd workroad requires scheduring priority-given to hose applicants who have passed all scheduled on a ftrst .ome,-Examination. first served uasis wffir may'have to be adjusted if the number of oarts of the Florida air rne nnal scneiute irearings exceeds a manageable level' termination of your Bar Application and will Faiture to respond within 60 days will result in the o rule 3-22.2. require reapprl"ation and payment of all fees pursuant to the place and time two ureeks in advance of the hearing dale, a notice indicating o Approximately you to telephone to confirm your for your hearing will be senl The notice will instruct attendance. will result-in.T.9 termination of your Faiture to appear for a confirmed investigative hearing o seeking of additional sums necessary application Jtin" nlitg by the-board of a petition Paymgll action taken will be at the board's discretion' to conduct the character ana ntness inquiry. The olfyouhaveadisabilityrequiringanac@mmodation,sendalettertotheFloridaBoardofBar Tallahassee, Ftorida 3239s'1750 stating Examiners, npfin-rvio6r" euilalng,'iBgi-ria"r couri, your requested accommodations' you will be billed tater for the cost pursuant to o lf the board requires a banscript of the hearing, rule3-22-6- NOTICE FOR USE IN REQUESTING SCHEDULING OF AN INVESTIGATIVE HEARING your response to the Notice to Appear for an lNSTRucTloNS: This form can be used to fax by regular mail if you wish. lnvestigative Hearin; ;y* may retum it NO. OF PAGES: DATE: Examiners TO: Florida Board of Bar FAX NO.: 850414-6822 FROM Print Name: Daytime Phone Number: File No.: below: be schedured for the meeting of the board indicated t request that the investigative hearing tI Apnl27-28,2012 Tallahassee I] May 18-1 9, 2012 Tampa tI July 13-14,2012 Orlando The$250feefortheadministrativefeefortheinvestigativehearing. mail' [ ] will follow this fax by regular [ ] is enclosed. Signature: