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THE FLORIDA BAR, Complaintant, V. VITO TORCHIA, JR., Respondent

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THE FLORIDA BAR, Complaintant, V. VITO TORCHIA, JR., Respondent IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Supreme Court Case Complaintant, No. SC-16-1267 v. The Florida Bar File No. 2016-00,163 (2A) VITO TORCHIA, JR., Respondent. _____________________________/ ANSWER TO FORMAL COMPLAINT FOR RECIPROCAL DISCIPLINE Vito Torchia, Jr., Respondent, files this Answer to Formal Compliant for Reciprocal Discipline filed by The Florida Bar, Complaintant, pursuant to the Rules Regulating The Florida Bar and answers: 1. Respondent admits the averment in paragraph 1 of the Complaint. 2. Respondent admits the averment in paragraph 2 of the Complaint. 3. Respondent is without knowledge or information sufficient to respond to the averment in paragraph 3, and on that basis, denies the averment in paragraph 3. Respondent further responds that the document speaks for itself. 4. Respondent denies the averments in paragraphs 4 A. through 4 CC. 5. Respondent is without knowledge or information sufficient to respond to 1 the averments in paragraphs 4 DD. and 4 EE, and on that basis, denies the averments in paragraphs 4 DD. and 4 EE. Respondent further responds that each document speaks for itself. 6. Respondent is without knowledge or information sufficient to respond to the averment in paragraph 5, and on that basis, denies the averment in paragraph 5. WHETHER RECIPROCOL DISCIPLINE IS APPROPRIATE This Court, in Florida Bar v. Kandekore , 932 So.2d 1005 (Fla. 2000), held that “[u]nder Rule Regulating The Florida Bar 3-4.6, when an attorney is adjudicated guilty of misconduct by the disciplinary agency of another jurisdiction, the adjudication serves as conclusive proof of commission of the misconduct charged. However, in Florida Bar v. Wilkes, 179 So.2d 193, 198 (Fla.1965), this Court noted that it is not automatically bound by an out-of-state determination of guilt by a disciplinary agency, and provided the following standard for determining whether a sister state's adjudication should be accepted as conclusive: [W]hen the accused attorney shows that the proceeding in the foreign state was so deficient or lacking in notice or opportunity to be heard, that there was such a paucity of proof, or that there was some other grave reason which would make it unjust to accept the foreign judgment as conclusive proof of guilt of the misconduct involved Florida can elect not to be bound thereby. Id. The Court 2 expressly noted that ‘the burden of showing why a foreign judgment should not operate as conclusive proof of guilt in a Florida disciplinary proceeding is on the accused attorney.’ Id. (emphasis added).” “The standard articulated in Wilkes was applied by this Court in Florida Bar v. Friedman, 646 So.2d 188 (Fla.1994). In Friedman, the State of New York suspended an attorney for five years for numerous violations. Id. at 189. The Florida Bar then filed a complaint against that attorney based upon the New York Bar's action. Id. In accepting the New York judgment as binding, and suspending the attorney until his reinstatement in New York, this Court noted that the burden was on Friedman to demonstrate that New York's proceedings were deficient. However, as determined by the referee, Friedman failed to meet his burden. As the referee's report indicates, Friedman was given ample opportunity before and during his disciplinary proceeding to demonstrate any inadequacies in the New York forum, but [he] failed to do so. Id. at 190.” In the instant case, Respondent failed to appear at his California State Bar1 hearing on May 14, 2015, resulting in an Entry of Default and ultimately, after his Motion to Vacate the Default and subsequent appeals were denied, leading to Respondent’s ultimate disbarment in California. Respondent’s disbarment was based on a procedural default, not a trial on the merits. 1 Unless otherwise indicated, all references to the State Bar are to the State Bar of California. 3 Respondent is an attorney at law duly licensed to practice in Florida and New York, and formerly in California. Respondent’s record in Florida and New York is untarnished and no complaints or disciplinary actions have been taken against him. In California, Respondent had no prior disciplinary record, prior to the Entry of Default that resulted in disbarment.2 Although Respondent disputes the allegations by the State Bar and claims there are defenses to said allegations, Respondent, as a then member of the State Bar and former CEO and Managing Attorney of the law firm at all relevant times, takes 100% responsibility for his actions and any harm that a client of the firm may have suffered because of them. Respondent was the founder, CEO and Managing Attorney of Brookstone Law, a California professional corporation, (“Brookstone Law”) from November 2, 2009, until July 8, 2015. During that time, Brookstone Law grew rapidly and quickly employed approximately 17 attorneys and 40 staff members and provided services to approximately 4000 clients. Respondent’s responsibilities were in the management of the law firm, and not on the practice of law. In that capacity, Respondent rarely met or had any personal contact with the clients of the firm. 2 On August 6, 2014, the State Bar Court of California issued a decision in Case No. 12-O-11847, et al. on charges the court generalized as “improper law firm supervision,” whereby the court recommended that Respondent be placed on four years’ stayed suspension and four years’ probation, including a two-year actual suspension. However, that decision was on appeal and no actual disciplinary action was taken against Respondent. On May 12, 2016, with the appeal pending, this matter was dismissed due to disbarment with no disciplinary action. 4 Having no prior law firm management experience, the stress and pressure of the job quickly took its toll on Respondent and Respondent self-medicated with alcohol. This ultimately progressed into an alcohol substance abuse problem. Respondent’s continued abuse of alcohol not only affected his job performance, but also resulted in severe health issues and Respondent missing a lot of time at work. Respondent was representing himself, in pro per, at the State Bar trial set for May 14, 2015. In the days leading up to Respondent’s trial, Respondent drank heavily leading to a blackout. During that blackout, Respondent failed to appear at his trial, which he did not realize until over 3 days later. Shortly thereafter, Respondent found out about the Entry of Default and his inactive status with the State Bar. Respondent then continued drinking that resulted in his hospitalization. After getting out of the hospital, Respondent filed a Motion to Vacate the Default in which he was extremely honest about his progressive battle with alcoholism, providing a declaration from his doctor and relevant hospital records. Alcoholism is recognized as a disease by the American Medical Association and the State of California. Respondent’s alcoholism not only directly resulted in his disability and incapacity on May 14, 2015, but was the direct reason for the charges brought against Respondent. However, Respondent’s motions, and subsequent appeals, were denied for failure to state a valid mistake, inadvertence, 5 surprise, or excusable neglect. After all appeals were exhausted, the State Bar then petitioned the Supreme Court of California for Respondent’s disbarment. Respondent subsequently chose not to oppose the State Bar’s petition and instead concentrate on his rehabilitation. Ultimately, the Supreme Court of California ruled on the State Bar’s petition, unopposed, and on April 29, 2016, ordered Respondent disbarred effective May 29, 2016. On, or around, June 28, 2016, pursuant to Rule 3-702(l)(1) of the Rules of The Florida Bar, Respondent notified the Supreme Court of Florida and The Florida Bar of Respondent’s disbarment in California. On, or around, July 12, 2016, The Florida Bar filed its Formal Complaint for Reciprocal Discipline that is currently before the Court. Section 1.1 of the Florida Standards for Imposing Lawyer Sanctions, states that “[t]he purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge their professional duties to clients, the public, the legal system, and the legal profession properly.” Section 9.32 lists factors which may be considered in mitigation when determining the appropriate sanctions on a lawyer. Mitigating factors include: 6 (a) Absence of a prior disciplinary record; Yes. As discussed above, Respondent has no prior disciplinary record in Florida, New York or California prior to the Entry of Default in California that resulted in his disbarment. (b) Absence of a dishonest or selfish motive; Yes. None of the allegations against Respondent have ever accused him of being dishonest or having a selfish motive. There are NO allegations of fraud, moral turpitude or trust fund improprieties or violations. (c) Personal or emotional problems; Yes. As discussed above, Respondent was under enormous amounts of stress, progressively leading to an extreme bout with alcoholism which has led to Respondent’s numerous hospitalizations over the past 3-4 years for, among other reasons, kidney failure and liver disease. (d) Timely good faith efforts to make restitution or to rectify consequences of misconduct; Yes, in process. In furtherance of his rehabilitation, Respondent has been in contact with attorney Samuel Bellicini, California state bar counsel, who has agreed to work with Respondent in developing a protocol to establish contact with those of whom Respondent needs to make restitution, including but not limited to Gerardo Guadarrama, Arturo and 7 Rochelle Calderon and Maria Madrigal, and instituting a plan to accomplish this to the best of Respondent’s ability. (e) Full and free disclosure to disciplinary board or cooperative attitude toward proceedings; Yes.
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