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IN the SUPREME COURT of FLORIDA (Before a Referee)

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IN the SUPREME COURT of FLORIDA (Before a Referee) IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Supreme Court Case Complainant, No. SCI 1-686 v. The Florida Bar File OSCAR ANTONIO HOTUSING, Nos. 2010-31,510 (18B) and 2011- 30,719 (5B) Respondent. / REPORT OF REFEREE ACCEPTING CONSENT JUDGMENT I. SUMMARY OF PROCEEDINGS Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the following proceedings occurred: On April 5, 2011, The Florida Bar filed its Complaint against Respondent in these proceedings. On January 10, 2013, the Fifth Judicial Circuit Grievance Committee "B" voted to find probable cause in The Florida Bar file number 2011- 30,719 (5B). All of the aforementioned pleadings, responses thereto, exhibits received in evidence, and this Report constitute the record in this case and are forwarded to the Supreme Court of Florida. II. FINDINGS OF FACT A. Jurisdictional Statement. Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. B. Narrative Summary Of Case. CASE NUMBER SC11-686 TTHE FLORIDA BAR CASE NO. 2010-31.510 (18B)1 A. In 2010, respondent campaigned for circuit court judge in Brevard and Seminole Counties, Eighteenth Judicial Circuit of Florida. At the time he campaigned in 2010, respondent was a former judge, having served as a County Court Judge in Brevard County between 2006 and 2008. During his 2010 campaign, respondent engaged in several campaign law violations. In campaign literature, respondent appeared in a judicial robe without clarifying that he was a former, rather than sitting, judge. Respondent appeared on television and allowed others to refer to him as a judge and he referred to himself as "Judge Hotusing" on his Face Book webpage. He took no action to correct his Face Book webpage or correct the interviewers' error in referring to him as a judge. Further, respondent permitted several of his campaign workers to appear at political party functions and allowed his campaign manager to retain an executive position with a political 2 party/organization in violation of the Judicial Canons. He also paid for the assistance and support of a partisan political organization/political consulting firm. THE FLORIDA BAR FILE NO. 2011-30.719 (5B) B. Respondent failed to provide Donna M. Burr with diligent representation and failed to maintain adequate communication with her in her dissolution of marriage case. During the time he was hired, respondent was affiliated with a local law firm and was campaigning for judge. Ms. Burr paid $700.00 to the firm and respondent received $280.00 from the firm for his representation. Respondent failed to attend a hearing in regard to Ms. Burr's matter because he failed to calendar her matter and because he was in another courtroom at the time of the hearing. Respondent left the law firm abruptly without advising Ms. Burr. He also failed to properly withdraw from Ms. Burr's matter. Eventually the court removed respondent from the case. III. RECOMMENDATIONS AS TO GUILT I recommend that Respondent be found guilty of violating the following Rules Regulating The Florida Bar: CASE NUMBER SC11-686 [THE FLORIDA BAR CASE NO. 2010-31.510 (18B)1 3 4-8.2(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Florida's Code of Judicial Conduct. Canon 7A(3)(a) A candidate for judicial office shall be faithful to the law and maintain professional competence in it, and shall not be swayed by partisan interests, public clamor, or fear of criticism. Canon 7A(3)(c) A candidate for judicial office shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon. Canon 7A(3)(d) A candidate for judicial office, except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon. Canon 7A(3)(e)(ii) A candidate for judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent. Canon 7C(3) A judicial candidate involved in an election or re-election, or a merit retention candidate who has certified that he or she has active opposition, may attend a political party function to speak in behalf of his or her candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of justice. The function must not be a fund raiser, and 4 the invitation to speak must also include the other candidates, if any, for that office. The candidate should refrain from commenting on the candidate's affiliation with any political party or other candidate, and should avoid expressing a position on any political issue. A judicial candidate attending a political party function must avoid conduct that suggests or appears to suggest support of or opposition to a political party, a political issue, or another candidate. Conduct limited to that described above does not constitute participation in a partisan political party activity. THE FLORIDA BAR FILE NO. 2011-30,719 (5B) 4-1.2(a) Subject to subdivisions (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation, and, as required by rule 4- 1.4, shall reasonably consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. 4-1-1.3 A lawyer shall act with reasonable diligence and promptness in representing a client. 4-1.4(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance 5 with respect to which the client's informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. 4-1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 4-5.8(d)(1) When a joint response has not been successfully negotiated, unilateral contact by individual members or the law firm shall give notice to clients that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms. IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS I considered the following Standards prior to recommending discipline: 4.4 Lack of Diligence 6 4.43 Public reprimand is appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. 7.0 Violations of Other Duties Owed as a Professional 7.3 Public reprimand is appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. 9.22 Aggravating Factors (d) multiple offenses; and (i) substantial experience in the practice of law. 9.32 Mitigating Factors (a) absence of prior disciplinary record; (g) character or reputation; and (1) remorse. I. CASE LAW 7 I considered the following case law prior to recommending discipline: Inquiry Concerning Angel, 867 So. 2d 379 (Fla. 2004) — Public reprimand for engaging in prohibited partisan political activity during his judicial campaign. In re Alley, 699 So. 2d 1369 (Fla. 1997) - Public reprimand for misrepresenting her qualifications and those of her opponent in a judicial election campaign and for interjecting partisan politics into a nonpartisan election. The Florida Bar v. Barcus, 697 So. 2d 71 (Fla. 1997) - Public reprimand, administered by a board appearance, for engaging in isolated acts of misconduct while representing a client. The attorney failed to appear at a scheduled deposition, filed a notice of appeal merely for purposes of delay, and failed to move for a rehearing or to file a motion to set aside or vacate the unfavorable judgment against his client. The Court found the attorney did not engage in a pattern of negligence which would require a period of suspension. Rather, he ineptly handed a difficult situation involving a challenging client. The attorney had no prior disciplinary history and was manipulated by the client. The Florida Bar v. Robinson, 654 So. 2d 554 (Fla. 1995) - Public reprimand and two year period of probation for failing to adequately communicate with one 8 client, failing to file a notice of appeal on behalf of a second client, and failing to adequate prepare for a third client's criminal trial.
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