In the Supreme Court of Florida the Florida Bar

Filing # 80243393 E-Filed 11/02/2018 11:00:31 AM

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court Case Complainant, No. SC17-490 v. The Florida Bar File No. 2016-10,349 (12A) MELTON HARRY LITTLE, Respondent. ______/

THE FLORIDA BAR, Supreme Court Case Complainant, No. SC17-574 v. The Florida Bar File No. 2016-10,348 (12A) SCOTT BRIAN KALLINS, Respondent. ______/

REPLY/CROSS-ANSWER BRIEF

Troy Matthew Lovell, Bar Counsel Joshua E. Doyle, Executive Director The Florida Bar, Tampa Branch Office The Florida Bar 2002 North Lois Avenue, Suite 300 651 E. Jefferson Street Tampa, Florida 33607 Tallahassee, Florida 32399-2300 (813) 875-9821 (850) 561-5600 Florida Bar No. 946036 Florida Bar No. 25902 [email protected] [email protected]

Adria E. Quintela, Staff Counsel The Florida Bar RECEIVED, 11/02/201811:03:26 AM,Clerk,Supreme Court Lakeshore Plaza II, Suite 130 1300 Concord Terrace Sunrise, Florida 33323 (954) 835-0233 Florida Bar No. 897000 [email protected] TABLE OF CONTENTS

TABLE OF CONTENTS ...... i

TABLE OF CITATIONS ...... ii

SYMBOLS AND REFERENCES ...... v

REPLY BRIEF ...... 1

ARGUMENT ...... 1

I. RESPONDENTS’ MISCONDUCT WAS KNOWING...... 1 II. RESPONDENTS FAIL TO PROVIDE SUPPORT FROM CASE LAW. .. 4 III. EXHIBIT 30 IS NEITHER EVIDENCE NOR AUTHORITY...... 6 IV. RESPONDENTS FAIL TO DISTINGUISH SAXON ...... 8 V. RESPONDENTS’ GIFTS WERE NOT DE MINIMIS...... 10 VI. EVEN SUBSTANTIAL MITIGATION DOES NOT OVERCOME SERIOUS MISCONDUCT...... 11 CONCLUSION ...... 13

CROSS-ANSWER BRIEF ...... 14

STATEMENT OF THE CASE AND OF THE FACTS ...... 14

SUMMARY OF THE ARGUMENT ...... 18

ARGUMENT ...... 19

I. THIS COURT’S REVIEW IS NEVER CONDITIONAL...... 19 II. THE REFEREE CORRECTLY GRANTED PARTIAL SUMMARY JUDGMENT...... 20 III. RULE 4-3.5(a) ...... 22 IV. RULE 3-4.3 ...... 26 V. RULE 4-8.4(a) ...... 28 CONCLUSION ...... 29

CERTIFICATE OF SERVICE ...... 29 CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN ...... 31 i TABLE OF CITATIONS

Cases

Florida Bar v. Adorno, 60 So. 3d 1016 (Fla. 2011) ...... 3, 12

Florida Bar v. Beach, 699 So. 2d 657 (Fla. 1997) ...... 23

Florida Bar v. Gardiner, 183 So. 3d 240 (Fla. 2014) ...... 10, 12, 21

Florida Bar v. Korones, 752 So. 2d 586 (Fla. 2000) ...... 12

Florida Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010) ...... 27 Florida Bar v. Rotstein, 835 So. 2d 241 (Fla. 2002) ...... 27 Florida Bar v. Saxon, 379 So. 2d 1281 (Fla. 1980) ...... 8, 10 Florida Bar v. Scheinberg, 129 So. 3d. 315 (Fla. 2013) ...... 10, 12, 21

Florida Bar v. Swann, 116 So. 3d 1225 (Fla. 2013) ...... 24 Florida Bar v. Trazenfeld, 833 So. 2d 734 (Fla. 2002) ...... 8

Florida Bar v. Von Zamft, 814 So. 2d 385 (Fla. 2002) ...... 22 Florida Bar v. Wynn, 210 So. 3d 1271 (Fla. 2017) ...... 7 In re Luzzo, 756 So. 2d 76 (Fla. 2000) ...... 4, 5, 11 Steinhorst v. State, 636 So. 2d 498 (Fla. 1994) ...... 10

Rules

R. Regulating Fla. Bar 3-4.3 ...... 14, 18, 26, 27

R. Regulating Fla. Bar 4-3.5 ...... 14, 25

R. Regulating Fla. Bar 4-3.5(a) ...... 18, 22, 23, 26, 27 R. Regulating Fla. Bar 4-3.5, Comment ...... 26 R. Regulating Fla. Bar 4-8.4(a) ...... 14, 18, 28

ii R. Regulating Fla. Bar 4-8.4(c) ...... 27

R. Regulating Fla. Bar 4-8.4(d) ...... 14, 18, 20, 21, 22, 26, 27

Florida Standards for Imposing Lawyer Sanctions

Fla. Stds. Imposing Law. Sancs. 6.32 ...... 1, 3

Fla. Stds. Imposing Law. Sancs. 6.34 ...... 1

Fla. Stds. Imposing Law. Sancs. 9.3 ...... 13

Fla. Stds. Imposing Law. Sancs., Section II ...... 2

Other

Code of Judicial Conduct, Definitions ...... 11 Fla. Code Jud. Conduct, Canon 1 ...... 26

Fla. Code Jud. Conduct, Canon 2A...... 26 Fla. Code Jud. Conduct, Canon 2B ...... 26 Fla. Code Jud. Conduct, Canon 3B(5) ...... 26

Fla. Code Jud. Conduct, Canon 3B(8) ...... 26 Fla. Code Jud. Conduct, Canon 3E(1) ...... 26 Fla. Code Jud. Conduct, Canon 5A(1) ...... 26

Fla. Code Jud. Conduct, Canon 5A(2) ...... 26

Fla. Code Jud. Conduct, Canon 5A(3) ...... 26

Fla. Code Jud. Conduct, Canon 5D(5)(h) ...... 26

Fla. Code Jud. Conduct, Canon 5D(h) ...... 11

Fla. Const. Art. V, Section 15 ...... 7, 19

iii Public Admonishment of Former Judge Vincent P. DiFiglia (Cal. Comm’n on Jud. Perf. Jan. 9, 2007), available at https://cjp.ca.gov/wp-content/uploads/sites/ 402016/08/DiFiglia_01-09-07.pdf ...... 5

iv SYMBOLS AND REFERENCES

Respondents, Melton Harry Little and Scott Brian Kallins, will be referred to by name, or collectively as “Respondents.” The Florida Bar will be referred to as

“The Florida Bar” or as “the Bar.” The referee will be referred to as “Referee.”

Additionally, “Rule” or “Rules” will refer to the Rules Regulating The Florida Bar.

“Standard” or “Standards” will refer to Florida Standards for Imposing Lawyer

Sanctions.

“Report” will refer to the Report of Referee entered on May 17, 2018, followed by the appropriate page number (e.g., Report 1). References to specific pleadings will be made by title and, if applicable, Index tab number.

“Transcript” will refer to the transcript of the trial before the Referee, followed by the volume and appropriate page number (e.g., Transcript, Vol. I, p.

1).

“Exh.” will refer to the joint exhibits admitted during the final hearing, followed by the appropriate exhibit number (e.g., Exh. 1).

“Index” will refer to the Index of Record, followed by the tab number (e.g.,

Index 1).

“Answer Brief” will refer to the Respondents’ Answer and Conditional

Cross-Initial Brief dated October 11, 2018, followed by the appropriate page number (e.g. Answer Brief, p. 1). v

REPLY BRIEF

ARGUMENT

I. RESPONDENTS’ MISCONDUCT WAS KNOWING.

The Florida Standards for Imposing Lawyer Sanctions are an important authority for determining an appropriate sanction for attorney misconduct. In their

Answer Brief, Respondents argue that Standard 6.34 (which calls for an admonishment) is the correct Standard to apply, rather than the Bar’s recommended Standard 6.32 (which calls for suspension). One of the primary differences between Standard 6.32 and 6.34 is the attorney’s mental state.

Standard 6.32 is the correct Standard because Respondents’ misconduct was knowing, not negligent.

Respondents’ preferred Standard 6.34 applies to negligent misconduct.

Respondents claim their misconduct was negligent because the wrongful nature of their actions “did not occur to either of them.” Answer Brief, p. 47. This argument confuses knowledge of one’s actions with knowledge of one’s ethical obligations. Respondents’ misconduct was knowing because they knew what they were doing, regardless of whether they were consciously contemplating the wrongful nature of their actions at the time.

The Standards define “knowledge” for determining the mental state applicable to an attorney’s misconduct. In Section II, the Standards define

“knowledge” as when, “the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct [but] without the conscious objective or purpose to accomplish a particular result.” Fla. Stds. Imposing Law. Sancs.,

Section II. Thus, Respondents need not have realized that their actions violated the

Rules for those actions to have been “knowing.” At the time Respondents offered the first set of tickets to then-Judge Lakin, Respondents knew they had just conducted a four-day trial before then-Judge Lakin. Transcript, Vol. I, pp. 21, 31.

Respondents also knew they intended to file a motion for new trial. Transcript,

Vol. I, p. 31. Respondents knew that they did not inform opposing counsel about the tickets. Exh. 10, p. 41. At the time of then-Judge Lakin’s request for the second set of tickets, Respondents knew that the motion for new trial had been argued at hearing and was under consideration. Transcript, Vol. I, pp. 34-35.

Respondents knew the case remained pending before then-Judge Lakin up until the hearing at which he announced his recusal, which included the time when the third and fourth sets of tickets were given. Exh. 7. No relevant fact or circumstance was unknown or unclear to Respondents at the time they committed their

2 misconduct. Accordingly, Respondents’ knowledge of all relevant facts made their misconduct “knowing” as defined by the Standards.

This Court’s case law also supports finding that Respondents’ misconduct was “knowing.” For example, in Florida Bar v. Adorno, 60 So. 3d 1016 (Fla.

2011), this Court rejected an argument similar to Respondents’ argument. In

Adorno, the attorney represented seven plaintiffs on behalf of a proposed class challenging a fire rescue assessment by the City of Miami, though no ruling on class certification was ever made. Id. at 1019-20. The attorney settled the case on behalf of the seven individual plaintiffs, abandoning the interests of the proposed class. Id. at 1020-22. The referee found the attorney guilty of violating several

Rules and recommended that he be publicly reprimanded. Id. at 1023. Like

Respondents, the attorney in Adorno argued that he did not have an intent to engage in misconduct. Id. at 1032. This Court rejected that argument. Id.

“Although Adorno asserts that he did not have an intent to engage in misconduct, his actions satisfy the element of intent because such acts were deliberate and knowing.” Id. (emphasis added). This Court then applied the Standards applicable to knowing misconduct. Similarly, this Court should rely on Standard 6.32 in determining the appropriate sanction for Respondents’ misconduct because

Respondents’ misconduct was also knowing.

II. RESPONDENTS FAIL TO PROVIDE SUPPORT FROM CASE LAW.

Although Respondents assert that existing case law supports the Referee’s recommended sanction, they fail to cite even one prior Florida attorney discipline case which supports the Referee’s recommendation. The only Florida case cited by Respondents in an effort to support the Referee’s recommended sanction is In re Luzzo, 756 So. 2d 76 (Fla. 2000). As explained in the Bar’s Initial Brief, Luzzo is of little value because it is a Judicial Qualifications Commission case; because it comes from an earlier era of more lenient discipline; and, most importantly, because the facts are not as egregious as the facts of Respondents’ misconduct. In

Luzzo, two attorney friends of the judge gave him Florida Marlins tickets on several occasions over a four-year period. Id. at 78. During that time, there were at least two occasions when other attorneys from the firm appeared before the judge. Id. at 79. Nothing in the opinion suggests timing as egregious as tickets being given the day after an adverse jury verdict or given while a motion for new trial was under consideration. Also, the attorneys appearing before the judge appear to have been different attorneys from the ones giving the judge tickets, though they were all from the same firm. Id. Furthermore, the tickets in Luzzo were given in connection with a longstanding friendship between the judge and the

4 attorneys. Id. at 77. Respondents and then-Judge Lakin had no relationship or any interactions outside of the courtroom. Transcript, Vol. II, p. 106. Luzzo is simply too different to be useful.

Respondents also cite several “decisions” from other states. Most of

Respondents’ decisions involve judicial discipline, not attorney discipline, and most are not even court decisions. These decisions are of little weight, particularly given that Florida cases involving attorney discipline for similar misconduct are available, as discussed in the Initial Brief. Furthermore, many of the decisions cited by Respondents involve facts completely different from the facts of

Respondents’ misconduct. Most of the decisions cited by Respondents involve gifts given in connection with long-standing friendships between attorneys and the judge. For example, Public Admonishment of Former Judge Vincent P. DiFiglia

(Cal. Comm’n on Jud. Perf. Jan. 9, 2007), available at https://cjp.ca.gov/wp- content/uploads/sites/ 402016/08/DiFiglia_01-09-07.pdf, is one example of how factually different the decisions cited by Respondents are. DiFiglia was a

California judge who had a long-term friendship with an attorney who appeared in a case before the judge in 2000. The relationship involved the judge accepting golf tournament fees from the attorney in 1990 and 1991, playing golf (at the judge’s own expense) four to six times over the ensuing years, attending a Christmas Eve

5 party at the attorney’s home in 1993, seeing the attorney at bar functions, and occasionally having drinks with the attorney. DiFiglia was publicly admonished for not disclosing this relationship, though most of the significant interactions took place several years prior to the 2000 case. Attendance at a Christmas Eve party seven years earlier is so dissimilar to gifts given the day after an adverse jury verdict and while a motion for new trial has been taken under advisement that

DiFiglia provides little guidance. Furthermore, at the time of the commission’s decision, DiFiglia had been retired for three years. Suspension and removal appear not to have been meaningful options. These out-of-state decisions about improper conduct by judges based on substantially different facts do not provide a proper basis to support the Referee’s recommended discipline.

III. EXHIBIT 30 IS NEITHER EVIDENCE NOR AUTHORITY.

Respondents argue that this Court should consider Exhibit 30 in determining the appropriate sanction for Respondents. Exhibit 30 is a grievance committee decision regarding another attorney who gave tickets to then-Judge Lakin. The facts related to Exhibit 30 appear to be very different from the facts of

Respondents’ misconduct: the attorney in Exhibit 30 was friends with then-Judge-

Lakin and did not have a case pending before him at the time of the gifts.

Regardless of the specific facts involved, this Court should not consider Exhibit 30 because it is neither legal authority nor factual evidence.

This Court has provided guidance regarding what constitutes existing authority to support a referee’s recommended sanction. Unreported dispositions in other attorney discipline proceedings do not constitute existing authority on which a referee can rely. Florida Bar v. Wynn, 210 So. 3d 1271, 1273, 1274 (Fla. 2017).

Based on Wynn, grievance committee decisions should not be considered.

Respondents also offered Exhibit 30 as an evidentiary exhibit, despite acknowledging the fact that it provided no evidence relevant to the facts being considered by the Referee at the final hearing. Transcript, Vol. II, pp. 249-50. The

Referee properly declined to admit Exhibit 30 as evidence. Transcript, Vol. II., p.

252. Thus, Exhibit 30 has no value either as precedent or as evidence, so this

Court should not consider Exhibit 30 in determining the appropriate sanction.

In addition, consideration of Exhibit 30 would be a complete inversion of the attorney disciplinary system. Article V, Section 15 of the Florida Constitution vests exclusive jurisdiction over attorney admissions and discipline with this Court.

In connection with this constitutional duty, this Court promulgated the Rules

Regulating The Florida Bar, which sets forth rules and procedures for consideration of attorney disciplinary matters. Grievance committees were created

7 as part of that system. Grievance committees should look to this Court for guidance; this Court should not look to grievance committees for guidance.

Furthermore, grievance committee decisions do not have any res judicata effect.

Florida Bar v. Trazenfeld, 833 So. 2d 734, 736 (Fla. 2002). Thus, grievance committee decisions do not even bind the grievance committees that made them, yet Respondents argue that this Court should be bound by this grievance committee decision. This Court should not consider Exhibit 30 in deciding the appropriate sanction.

IV. RESPONDENTS FAIL TO DISTINGUISH SAXON

Respondents’ attempt to distinguish Florida Bar v. Saxon, 379 So. 2d 1281

(Fla. 1980), actually demonstrates why their misconduct was so serious. In Saxon, an attorney stuffed $100 bills into the shirt pocket of a federal magistrate the day after favorable rulings for his clients. Id. at 1282. The federal magistrate rejected the money and had already ruled on the cases at issue. Id. The Court accepted the referee’s findings that the attorney “had no corrupt intent.” Id. at 1283. Despite these findings, Respondents refer to Saxon as a “bribery” case and attempt to distinguish the misconduct in Saxon from their own misconduct because they gave tickets instead of cash. Respondents then apply a “common-sense” standard to

8 evaluate the facts of Saxon, stating, “common sense supports the conclusion that the gift of money is a bribe.” Answer Brief, p. 39.

Applying a “common sense” standard to Respondents’ misconduct leads to similarly negative conclusions, however. Respondents held season tickets to the

Tampa Bay (Devil) Rays from the inception of the team in the late 1990s. Exh. 10, pp. 22-23. Despite their practice of frequently giving away tickets, they had never previously given any of those tickets to any judge, at any time. Transcript, Vol. I, p. 25; Exh. 10, p. 22. Respondents had no friendship or other personal relationship with then-Judge Lakin. Exh. 10, pp. 19-20. Respondents had never given baseball tickets to Lakin prior to Lakin’s election to the bench. Exh. 10, p. 21.

Respondents offered baseball tickets to then-Judge Lakin the day after he presided over a four-day jury trial that resulted in an adverse verdict. Transcript, Vol. I, pp.

21-22, 31-32. Respondents intended to file a motion for new trial at the time they offered the tickets. Transcript, Vol. I, p. 31. Respondents granted then-Judge

Lakin’s request for additional tickets which was made two business days after a hearing on the motion for new trial and while the motion was under advisement.

Transcript, Vol. I, p. 34-35. The judge granted the motion the day after using the second set of tickets. Exh. 4. In total, Respondents gave then-Judge Lakin baseball tickets with a total face value in excess of $2,000. Exh. 16. “Common

9 sense” applied to these facts leads to the conclusion that the tickets were part of a corrupt transaction.

The importance of the timeline of Respondents’ misconduct is that it shows that the bare facts and circumstances give the appearance of corruption, regardless of the intent of the parties. Misconduct which creates the appearance of corruption severely undermines the judicial process and must not be tolerated, even, as in this instance and as in Saxon, there is no corrupt intent. As this Court stated in Florida Bar v. Gardiner, 183 So. 3d 240, 244 (Fla. 2014) “[i]n all cases, due process requires that the proceedings must both be and appear to be fundamentally fair.” (citing Steinhorst v. State, 636 So. 2d 498, 501 (Fla. 1994)).

In Gardiner, the former judge who undermined the appearance of fairness through her interactions with one of the attorneys was disbarred. Gardiner, 183 So. 3d at

245. As in Gardiner, Respondents’ misconduct was serious, regardless of their intent, and should be sanctioned accordingly. See also, Florida Bar v. Scheinberg,

129 So. 3d. 315 (Fla. 2013) (suspending attorney for two years for improper interactions with presiding judge – same events as Gardiner).

V. RESPONDENTS’ GIFTS WERE NOT DE MINIMIS.

Respondents repeatedly refer to their gifts of baseball tickets as de minimis, though they provide no authority or analysis to support that conclusion. Based on

10 applicable authority and the available evidence, these gifts were substantial, not de minimis. The Code of Judicial Conduct defines “de minimis” as, “an insignificant interest that could not raise reasonable question as to a judge’s impartiality.” Code of Judicial Conduct, Definitions. The five tickets for each of four games had a total face value of $2,050 and had been purchased by Respondents for $1,680.

Exh. 16. Regardless of which valuation is used, the value of the tickets appears to far exceed a value sufficient to raise reasonable question as to a judge’s impartiality. These tickets had a far greater value than the $16 to $18 tickets at issue in Luzzo. In re Luzzo, 756 So. 2d at 78. The Code also prohibits judges from accepting any gifts which exceed $100 in value during a single calendar year.

Canon 5D(h). Even then, the judge may not accept the gift if it is from someone who has appeared or is likely to appear before the judge. Clearly, the value of the tickets greatly exceeded an amount which could properly be considered de minimis.

VI. EVEN SUBSTANTIAL MITIGATION DOES NOT OVERCOME SERIOUS MISCONDUCT.

Respondents argue that the Referee’s lenient recommended sanction should be adopted by this Court, in part, because of the character evidence put forth in mitigation at the final hearing. Much of the evidence at the final hearing was

11 related to witness testimony regarding Respondents’ reputations in the legal community and their charitable work. In the past, however, this Court has concluded that even substantial mitigation does not overcome serious misconduct.

This Court should apply that same principle in this proceeding.

This Court has decided several cases in which an attorney who has committed serious misconduct has presented substantial evidence of mitigation.

For example, in Adorno, the attorney presented testimony from numerous civic leaders, managing partners of leading law firms, and even a former Florida

Supreme Court justice. The referee in that case found the attorney exemplified a dedication to pro bono work, charities, and the betterment of his community.

Adorno, 60 So. 3d at 1036. Nevertheless, this Court noted that prior commendable acts do not exonerate an attorney from the appropriate discipline for intentional, egregious misconduct. Id., citing Florida Bar v. Korones, 752 So. 2d 586 (Fla.

2000). Like the attorney in Adorno, Respondents also had many prominent citizens testify on their behalf, including family members, current and former judges, fellow attorneys, and other community leaders. Nevertheless, Respondents have committed serious misconduct and should receive an appropriately serious sanction for that misconduct. Notably, the attorney in Scheinberg (two-year suspension) and the former judge in Gardiner (disbarment), whose misconduct was

12 similar to Respondents’ misconduct, also had substantial mitigation evidence presented on their behalf, but that mitigation did not prevent the imposition of serious sanctions against each. While Respondents’ reputations and charitable works are admirable, their misconduct merits a serious sanction.

Also, while Respondents are entitled to some mitigation for their prior good works, many of the factors Respondents cite in mitigation are not proper mitigating factors. Respondents argue that their age makes a return from a rehabilitative suspension extremely difficult; that their suspension would cause economic hardship for others, including employees, in their firm; and that their suspension would curtail their charitable activities. None of these factors are proper mitigating factors under Standard 9.3. Most of these same considerations apply to any attorney who has committed serious misconduct. While any such negative consequences may be unfortunate, those negative consequences will be the result of Respondents’ own misconduct.

CONCLUSION

Respondents have failed to provide a reasonable basis in existing authority to support the Referee’s recommendation of an overly lenient sanction.

Respondents’ argument that their conduct was negligent is inconsistent with the

Standards and contrary to this Court’s prior case law. Applying the correct

Standard and relying on directly applicable case law from this Court leads to the conclusion that the appropriate sanction for Respondents is at least a two-year suspension.

CROSS-ANSWER BRIEF

STATEMENT OF THE CASE AND OF THE FACTS

On March 23, 2017, The Florida Bar filed its Complaint against Respondent

Melton Harry Little (SC17-490), alleging violations of Rule 3-4.3 (general misconduct), Rule 4-3.5 (impartiality of the tribunal), Rule 4-8.4(a) (violating or attempting to violate rules), and Rule 4-8.4(d) (conduct prejudicial to the administration of justice). Index 1. On March 29, 2017, The Florida Bar filed its

Complaint against Respondent Scott Brian Kallins (SC17-574) alleging violations of the same Rules. Index 2. Both proceedings were assigned to the same referee and considered together.

On February 27, 2018, the Referee granted the Bar’s Motion for Partial

Summary Judgment against both Respondents, finding guilt as to Rule 4-8.4(d)

(conduct prejudicial to the administration of justice). Index 64. That same day, the

Referee also denied Respondents’ motions for summary judgment on all rules.

Index 65. The final hearing was held on April 24-26, 2018, addressing both the remaining issues of guilt and the recommended sanction.

On May 17, 2018, the Referee issued his Report of Referee. The Referee found both Respondents guilty of violating all four Rules at issue. Report 12. The

Referee recommended that each Respondent be disciplined by a) being placed on probation for one year; b) receiving an admonishment; c) being required to complete a Practice and Professionalism Enhancement Program during probation; and d) being required to speak to new attorneys at the Practicing with

Professionalism CLE and to veteran attorneys at one or more conferences regarding their misconduct. Report 15.

On June 28, 2018, The Florida Bar filed its Notice of Intent to Seek Review of Report of Referee seeking review of the Referee’s recommended sanction and seeking discipline of at least a two-year suspension for each Respondent. On July

18, 2018, Respondents filed their Cross-Notice of Intent to Seek Review of Report of Referee, seeking review of the Referee’s recommendations as to guilt.

These proceedings arose out of Respondents’ conduct during their representation of the plaintiff in Wittke v. Wal-Mart Stores, Case No. 2012-CA-

3458, in the Twelfth Judicial Circuit Court in and for Manatee County, Florida.

Respondents Little and Kallins conducted a civil jury trial before then-Judge John

Francis Lakin from June 22-25, 2015. Report 3. On the evening of June 25, 2015, the jury returned a verdict in favor of the defense. Report 3. The next day, June

26, 2015, Respondent Little suggested to Respondent Kallins that then-Judge

Lakin might be interested in using the firm’s Tampa Bay Rays season tickets for that evening’s game against the Boston Red Sox. Report 3. Respondent Kallins called Lakin’s judicial assistant and offered the tickets, which the judge accepted.

Report 3. The judicial assistant, Cathy Reed, testified that Kallins delivered the tickets to her. Transcript, Vol. II, p. 124. Lakin received five tickets and used two, discarding the remainder. Report 3. Lakin had no social relationship with

Respondents and had never previously used Respondents’ tickets. Report 9.

On July 2, 2015, Respondent Little filed a motion for new trial. Report 3;

Exh. 2. On Friday, August 21, 2015, then-Judge Lakin held a hearing on the motion (attended by Respondent Little, but not Respondent Kallins), after which

Lakin reserved ruling. Report 3. The following Tuesday, August 25, 2015, then-

Judge Lakin had his judicial assistant call Respondents’ firm and request tickets to that evening’s Rays game. Report 3-4. Respondent Little approved the request and delivered the tickets to then-Judge Lakin’s courtroom. Report 4. The following day, August 26, 2015, then-Judge Lakin granted the plaintiff’s motion for new trial. Report 4; Exh. 4.

On September 12, 2015, then-Judge Lakin requested additional baseball tickets, which request was granted. Report 4. The defendant appealed the order granting a new trial on September 21, 2015. Report 4; Exh. 6. On October 3,

2015, Lakin requested additional tickets, which the firm provided. Report 4.

On October 9, 2015, Lakin held a status conference, at which time he disclosed he had accepted baseball tickets from Respondents and recused himself from the case. Report 4; Exh. 7, 8. Prior to that status conference, defense counsel was not informed about the exchange of baseball tickets. Transcript Vol. I, p. 60.

After the hearing, Respondent Little downplayed the events, telling opposing counsel that the firm gives baseball tickets to the courthouse all the time without knowing who received them, which the Referee found to be dishonest. Report 10.

On February 1, 2016, the Judicial Qualifications Commission filed a notice of formal charges against Lakin. Report 4, Exh. 23. On March 7, 2016, Lakin resigned as a circuit court judge. Report 4. On November 17, 2016, the Second

District Court of Appeal reversed Lakin’s order granting the motion for new trial.

Report 4; Exh. 9. The reversal was not based on the exchange of baseball tickets.

Exh. 9.

SUMMARY OF THE ARGUMENT

The Referee correctly found Respondents guilty of all charged Rules.

Respondents’ actions were prejudicial to the administration of justice and caused actual prejudice to the administration of justice, thus supporting the Referee’s entry of partial summary judgment as to Rule 4-8.4(d).

The Referee had competent, substantial evidence to support his finding of dishonesty, so that factual finding should be accepted by this Court. The Referee’s recommendation of guilt as to Rule 4-3.5(a) is supported by the factual findings of the Referee and by Respondents’ contribution to then-Judge Lakin’s breach of the

Code of Judicial Conduct.

The factual findings which support the Referee’s findings of guilt on Rule 4-

8.4(d) and 4-3.5(a) also support the Referee’s recommendations of guilt on Rule 3-

4.3 and Rule 4-8.4(a). Rule 3-4.3 can also stand alone as a basis for discipline.

ARGUMENT

I. THIS COURT’S REVIEW IS NEVER CONDITIONAL.

On July 18, 2018, Respondents filed their Cross-Notice of Intent to Seek

Review of Report of Referee, seeking review of the Referee’s recommendations of guilt. In its Initial Brief on Cross-Appeal, Respondents describe their petition for review as “conditional,” stating that this Court need not consider their petition for review if this Court is inclined to accept the Referee’s recommended sanction.

Undersigned Bar Counsel is unaware of any authority which allows for a

“conditional” petition for review. Attorney discipline is part of this Court’s original jurisdiction under the state constitution. Fla. Const. Art. V, Section 15.

No party has the authority to declare this Court’s review of attorney disciplinary matters as “moot.” In the past, this Court has acted to correct errors made by referees even if neither party petitions for review and even if the parties stipulated to the resolution in question. If the Referee erred in finding Respondents guilty of misconduct, this Court should not adopt that error and discipline them, regardless of whether they petitioned for review or petitioned “conditionally.” Fortunately, the Referee did not err when he found Respondents guilty of misconduct.

II. THE REFEREE CORRECTLY GRANTED PARTIAL SUMMARY JUDGMENT. Both Respondents and the Bar filed motions for summary judgment prior to the final hearing. On February 27, 2018, the Referee entered Orders granting the

Bar’s motion for partial summary judgment as to Rule 4-8.4(d) and denying

Respondents’ motions for summary judgment as to all Rules. Index 64.

Respondents challenge the Referee’s recommendation that they be found guilty of violating Rule 4-8.4(d) (conduct prejudicial to the administration of justice). The

Referee was correct to grant the Bar’s motion.

First, Respondents argue that the Referee’s finding was in error because the

Referee used the phrase “appearance of impropriety” in describing Respondents’ violation of Rule 4-8.4(d) in his Report. Report 14. Respondents assert that the prior Code of Professional Responsibility prohibited creation of an appearance of impropriety, but that the Rules Regulating The Florida Bar do not use that particular phrase. Rule 4-8.4(d) uses the phrase, “conduct prejudicial to the administration of justice,” which incorporates much of the misconduct which was previously deemed an “appearance of impropriety.” The Referee did not use

“appearance of impropriety” in his Order Granting Partial Summary Judgment and used other phrases in referencing the violation of Rule 4-8.4(d) elsewhere in his

Report. Nevertheless, Respondents appear to argue that the use of this phrase 20 somehow renders void the Referee’s findings of misconduct. This Court’s approach to lawyer discipline does not turn on superficial word games.

Respondents’ misconduct was prejudicial to the administration of justice and constituted a violation of Rule 4-8.4(d), regardless of how that same misconduct may have been described in prior rules.

Ironically, Respondents themselves approvingly quote this Court’s use of the phrase “appearance of impropriety” in discussing Rules violations which include violations of Rule 4-8.4(d). Answer Brief, p. 37, quoting Gardiner, 183 So. 3d at

241. This Court used the phrase not only in Gardiner, but also in Scheinberg, both cases which involved violations of Rule 4-8.4(d) based on improper interactions between an attorney and a judge outside of the courtroom. Scheinberg, 129 So. 3d at 318.

Respondents also argue that they did not violate Rule 4-8.4(d) because they claim their misconduct “had no impact” on the underlying civil case. This argument is legally and factually incorrect. This Court has long held that misconduct need not have caused actual prejudice to the administration of justice in order to violate Rule 4-8.4(d). “[T]here is nothing in the Rules Regulating The

Florida Bar indicating that a judge must have actually been influenced by an attorney’s improper conduct for that conduct to constitute a violation under the

21 rules.” Florida Bar v. Von Zamft, 814 So. 2d 385, 389 (Fla. 2002). Respondents’ misconduct would still have been prejudicial to the administration of justice even if it actually had “no impact.”

The evidence, however, showed that Respondents’ misconduct did have an impact. In his Order granting Motion for Partial Summary Judgment, the Referee specifically identified two ways in which Respondents’ misconduct was prejudicial to the administration of justice. First, the gifts of baseball tickets damaged the perception of then-Judge Lakin’s impartiality. Second, those gifts caused then-

Judge Lakin to recuse himself. Index 64. These two specifically-identified effects bely Respondents’ claim of “no impact.” Notably, the referee in Von Zamft also identified the recusal of the trial judge as a tangible impact of that attorney’s misconduct. Von Zamft, 814 So. 2d at 387. This Court accepted the referee’s recommendation of guilt as to Rule 4-8.4(d) in Von Zamft and should accept the

Referee’s recommendation of guilt as to Rule 4-8.4(d) in this proceeding, also.

III. RULE 4-3.5(a)

After the final hearing, the Referee found Respondents guilty of violating

Rule 4-3.5(a), which prohibits improper attempts to influence a judge.

Respondents challenge this finding because they claim that the evidence presented did not support a finding that Respondents intended to influence then-Judge Lakin.

In order to prevail on their challenge, Respondents must demonstrate that the

Referee’s factual findings are clearly erroneous or without support in the record.

Florida Bar v. Beach, 699 So. 2d 657 (Fla. 1997). Respondents failed to meet this high burden.

Respondents argue that there was no proof of their intent to influence then-

Judge Lakin. Respondent first point to the Referee’s finding that Respondents were not acting to create a quid pro quo situation. Report 13. However, as pointed out by the Bar at the final hearing, one can attempt to influence a judge without a specific quid pro quo situation. One can attempt to influence a judge by trying to curry favor generally or by attempting to build a more favorable relationship. A specific quid pro quo is not a requirement for a violation of Rule 4-3.5(a). Thus, the Referee’s failure to find a specific quid pro quo does not undermine his finding of a violation of Rule 4-3.5(a).

Respondents also point to their own denial of intent and Lakin’s testimony that the tickets did not influence him. If this Court were to adopt Respondents’ analytical standard, no one would ever be found guilty of violating Rule 4-3.5(a) absent a confession from one of the participants. Based on his Report, the Referee considered the Respondents’ actions and the circumstances of those actions in making his factual findings, and he was correct to do so. Respondents point to

23 some of those facts and circumstances and offer an alternative, benign explanation for their actions. But, in order to successfully challenge a referee’s recommended factual finding, Respondents must do more than offer an alternative explanation.

They must demonstrate that the Referee’s findings lack support in the record.

Florida Bar v. Swann, 116 So. 3d 1225, 1234 (Fla. 2013). The Referee’s findings are supported by the record.

Respondents had practiced law for approximately thirty years. Transcript,

Vol. I, p. 21, 30. Each was board certified. Transcript, Vol. I, p. 21. 30. The firm had purchased season tickets since the inception of the franchise and frequently gave away tickets. Exh. 10, pp. 22-24. Prior to offering tickets to then-Judge

Lakin, Respondents had never offered tickets to any judge. Transcript, Vol. I, p.

40. Respondents had no relationship with then-Judge Lakin outside of the courtroom. Exh. 10, pp. 21-22. All of these facts are undisputed.

In addition, the Referee found that Respondent Little was dishonest in his interactions with opposing counsel after the gifts of baseball tickets were finally disclosed to him. Report 10. Although Respondents disagree with this finding, the

Referee had the opportunity to listen to testimony and observe the demeanor of witnesses, giving him ample basis to conclude Respondent Little was dishonest.

Opposing counsel, Richard Mangan, testified regarding his conversation with

Respondent Little, after the hearing in which then-Judge Lakin disclosed his receipt of tickets and recused himself. Mangan testified that Respondent Little told him that the firm sent tickets over to the courthouse all the time and that they did not know who used them. Transcript, Vol. I, p. 54. While Respondent Little’s comments to Mangan may have been technically true, they were misleading in context. Respondent Little knew that then-Judge Lakin had used baseball tickets which had been specifically offered to him on the first occasion and which he had requested (and Respondent Little personally delivered to him) on the second occasion. That other tickets may have been sent over to the courthouse for use by bailiffs or others was completely irrelevant to then-Judge Lakin’s recusal, and

Respondent knew that at the time he spoke with Mangan. The Referee, having observed the testimony of Mangan and Respondent Little, was correct to conclude that Respondent Little was being intentionally dishonest, misleading Mangan in order to deflect attention from his own involvement in the misconduct. Mangan’s testimony provided competent, substantial evidence for the Referee’s finding that

Respondent Little was dishonest. The combination of the undisputed facts, above, and the Referee’s finding of dishonesty by Respondent Little provide substantial, competent evidence to support of the Referee’s finding of guilt regarding Rule 4-

3.5. This Court should uphold that finding.

In addition, as the Bar argued at the final hearing, there is an alternate basis for finding a violation of Rule 4-3.5(a). Transcript, Vol. I, p. 71. The Comment to the rule states that a lawyer is required to avoid contributing to a violation of

Florida’s Code of Judicial Conduct. R. Regulating Fla. Bar 4-3.5, Comment. The evidence was undisputed that then-Judge Lakin violated Florida’s Code of Judicial

Conduct. Ex. 23 and 24. Lakin admitted to violating Canons 1, 2A, 2B, 3B(5),

3E(1), 5A(1), 5A(2), 5A(3), and Canon 5D(5)(h). Exh. 24. Lakin only disputed the alleged violation of Canon 3B(8), prior to his resignation from the bench. Exh.

24. Respondents’ gifts of baseball tickets were a substantial part of then-Judge

Lakin’s violation of the Canons. Because they contributed to those violations,

Respondents’ misconduct violated Rule 4-3.5(a). Thus, even if there were no express finding of intent, this Court should accept the Referee’s recommendation of guilt as to Rule 4-3.5(a).

IV. RULE 3-4.3 Respondents also argue that the Referee erred by finding a violation of Rule

3-4.3, which prohibits any action contrary to honesty and justice. As discussed above, Respondents’ misconduct violated Rule 4-8.4(d) as conduct prejudicial to the administration of justice. The same evidence and analysis which supports the

Referee’s recommendation of guilt as to Rule 4-8.4(d) also supports the finding

26 that Respondents’ actions were “contrary to justice” under Rule 3-4.3. In addition, as discussed above, the record has substantial evidence to support the Referee’s finding of dishonesty in dealing with opposing counsel which supports the

Referee’s recommendation of guilt as to Rule 4-3.5(a). That same evidence and analysis supports the Referee’s finding that Respondents’ actions were “contrary to honesty” under Rule 3-4.3. Because each of these findings is supported by competent, substantial evidence, this Court should uphold those findings and the finding of guilt under Rule 3-4.3.

Respondents also argue that the Referee erred in finding a violation of Rule

3-4.3 because Respondents were not even charged with violating Rule 4-8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.

Respondents’ argument is contrary to this Court’s case law. Finding a violation of

Rule 4-8.4(c) is not a requirement for finding a violation of Rule 3-4.3. In fact, this Court has frequently upheld findings of guilt when the only Rule violated was

Rule 3-4.3. See, e.g., Florida Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010); Florida

Bar v. Rotstein, 835 So. 2d 241 (Fla. 2002). Even if this Court were to conclude that Respondents did not violate 4-3.5(a) or Rule 4-8.4(d), this Court can and should still accept the Referee’s recommendation of guilt as to Rule 3-4.3.

V. RULE 4-8.4(a)

Respondents describe Rule 4-8.4(a) as a “parasitic” rule, dependent on violation of another rule. Rule 4-8.4(a) prohibits any Rules violations and also prohibits attempts to violate the Rules and violations of the Rules through the actions of another. Because Respondents argue that they did not violate any of the other charged Rules, they claim they did not violate Rule 4-8.4(a). As discussed above, The Florida Bar disagrees with Respondents’ arguments regarding the other

Rules at issue. In the event that this Court were to conclude that Respondents did not violate any of the other Rules, however, The Florida Bar agrees that there would not be a basis for finding a violation of Rule 4-8.4(a), absent a conclusion that Respondents’ actions constituted an attempt to violate another Rule, but not a violation of that Rule.

CONCLUSION

The Referee’s recommended findings of guilt are each supported by competent, substantial evidence. This Court should accept those recommended findings and find Respondents guilty of each of the Rules charged.

Respectfully submitted,

Troy Matthew Lovell, Bar Counsel The Florida Bar, Tampa Branch Office 2002 North Lois Avenue, Suite 300 Tampa, Florida 33607 (813) 875-9821 Florida Bar No. 946036 Primary E-Mail Address: [email protected] Secondary E-Mail Addresses: [email protected] [email protected]

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Reply/Cross-Answer Brief has been electronically filed with The Honorable John A. Tomasino, Clerk of the Supreme

Court of Florida using the E-Filing Portal, and that true and correct copies have been furnished to Melton Harry Little and Scott Brian Kallins, Respondents, c/o

Donald A. Smith, Jr. and Debra Joyce Davis, Counsel for Respondents, via electronic mail to their designated email addresses of [email protected],

29 [email protected], [email protected], and [email protected]; via electronic mail to Douglas A. Wallace and Tracy S.

Carlin, Appellate Counsel for Respondents, to their designated email addresses of [email protected], [email protected], and [email protected]; and via electronic mail to Adria E. Quintela, Staff Counsel, to her designated email address of [email protected], on this 2nd day of November, 2018.

Troy Matthew Lovell, Bar Counsel

CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN

Undersigned counsel does hereby certify that this Brief is submitted in 14 point proportionately spaced Times New Roman font, and that this brief has been filed by e-mail in accord with the Court’s order of October 1, 2004. Undersigned counsel does hereby further certify that the electronically filed version of this brief has been scanned and found to be free of viruses, by Norton AntiVirus for Windows.

Troy Matthew Lovell, Bar Counsel