IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR,

Complainant, Case No. SC03-153 [TFB Case No. 2002-11,379(05A)] v.

RANDALL J. COHEN,

Respondent. ______/

THE FLORIDA BAR'S ANSWER BRIEF JOHN F. HARKNESS, JR. Executive Director The Florida Bar 651 East Jefferson Street, Tallahassee, Florida 32399-2300 (850)561-5600 ATTORNEY NO. 123390

JOHN ANTHONY BOGGS Staff Counsel The Florida Bar 651 East Jefferson Street, Tallahassee, Florida 32399-2300 (850)561-5600 ATTORNEY NO. 253847 AND

JAN K. WICHROWSKI Bar Counsel The Florida Bar 1200 Edgewater Drive Orlando, Florida, 32804-6314 (407)425-5424 ATTORNEY NO. 381586 TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ...... iii

TABLE OF OTHER AUTHORITIES ...... v

SYMBOLS AND REFERENCES ...... vi

STATEMENT OF THE CASE ...... 1

STATEMENT OF THE FACTS ...... 3

SUMMARY OF THE ARGUMENT ...... 5

ARGUMENT

POINT I WHETHER RULE 4-8.4(d) CAN BE APPLIED TO A LAWYER ACTING IN HIS INDIVIDUAL CAPACITY? ...... 7

POINT II

i WHETHER THE REFEREE PROPERLY EXERCISED HIS DISCRETION IN GRANTING THE FLORIDA BAR’S MOTION FOR SUMMARY JUDGMENT? ...... 14

POINT III WHETHER THE REFEREE’S FINDING THAT RESPONDENT’S CONDUCT VIOLATED RULE 4-8.4(d) WAS SUPPORTED BY THE EVIDENCE? ...... 21

POINT IV WHETHER THE REFEREE’S RECOMMENDATION THAT RESPONDENT UNDERGO PSYCHOLOGICAL TESTING OR COUNSELING WAS SUPPORTED BY THE EVIDENCE? ...... 25

CONCLUSION ...... 26

CERTIFICATE OF SERVICE ...... 28

COMPLIANCE WITH RULE 9.201(a)(2) ...... 29

ii APPENDIX ...... 30

APPENDIX INDEX ...... 31

iii TABLE OF AUTHORITIES

PAGE

The Florida Bar v. Went For It, Inc...... 11 515 U.S. 618 (1995)

American Civil Liberties Union of Florida, Inc. v. The Florida Bar ...... 11 744 F. Supp. 1094 (N.D. Fla. 1990)

Carpineta v. Shields ...... 15 70 So. 2d 573 (Fla. 1954)

The Florida Bar v. Bennett ...... 7 276 So. 2d 481 (Fla. 1973)

The Florida Bar v. Cibula 725 So. 2d 360 (Fla. 1998) ...... 10

The Florida Bar v. Clark 528 So. 2d 369 (Fla. 1988) ...... 10, 12, 13

The Florida Bar v. Hooper ...... 7 507 So. 2d 1078 (Fla. 1987)

The Florida Bar v. Hosner ...... 7

iv 520 So. 2d 567 (Fla. 1988)

The Florida Bar v. Kelly ...... 8, 23 813 So. 2d 85 (Fla. 2002)

The Florida Bar v. Lusskin ...... 14 661 So. 2d 1211(Fla. 1995)

The Florida Bar v. Nunes ...... 8, 23 734 So. 2d 393 (Fla. 1999)

The Florida Bar v. Ray ...... 11 797 So. 2d 556 (Fla. 2001)

The Florida Bar re Amendments to Rules Regulating The Florida Bar ...... 10, 13 624 So. 2d 720 (Fla. 1993)

The Florida Bar v. Roth ...... 14 693 So. 2d 969 (Fla. 1997)

The Florida Bar v. Sayler ...... 12 721 So. 2d 1152 (Fla. 1998)

The Florida Bar v. Spears ...... 24 786 So. 2d 516 (Fla. 2001)

v The Florida Bar v. Wasserman ...... 12 675 So. 2d 103 (Fla. 1996)

Moore v. Morris ...... 14, 15 475 So. 2d 666 (Fla. 1985)

Whitten v. Progressive Casualty Insurance Co...... 21 410 So. 2d 501 (Fla. 1982)

In re Rouss ...... 13 221 N.Y. 81, 116 N. E. 782 (1917)

vi TABLE OF OTHER AUTHORITIES

PAGE

Rules Regulating The Florida Bar

Preamble ...... 9

3-4.1 ...... 19

4-3.1 ...... 1, 6, 8, 9, 21, 23

4-8.4(d) ...... 1, 6, 7, 8, 9, 10, 11, 12, 16, 23

Florida Rules of Appellate Procedure

9.120(a) ...... 2

Florida Rules of Civil Procedure

1.510 ...... 14

1.510(c) ...... 15

Florida Statutes

vii 57.105 ...... 22

viii SYMBOLS AND REFERENCES

In this brief, the complainant, The Florida Bar, shall be referred to as "The Florida Bar" or "the Bar."

The transcript of the hearing held on April 28, 2003, on the parties’ motions for summary judgment shall be referred to as “TI” followed by the cited page number. The transcript of the final hearing held on July 18, 2003, shall be referred to as "TII" followed by the cited page number.

The Report of Referee dated July 23, 2003, will be referred to as "ROR" followed by the referenced page number(s) of the Appendix, attached. (ROR-A____). The two petitions for protection against repeat violence filed by the respondent that form the basis for this matter are included in the Appendix and will be referenced by the appropriate Appendix page number(s) . There were no exhibits in this case.

ix STATEMENT OF THE CASE

After giving the respondent appropriate notice and an opportunity to respond, the Fifth Judicial Circuit

Grievance Committee "A" voted to find probable cause in this matter on October 25, 2002. On January 29, 2003, the Bar filed its Complaint and the referee was appointed on or about February 26, 2003. On March 12, 2003, the respondent moved for summary judgment and on March 21, 2003, The Florida Bar filed its motion for summary judgment. After hearing both motions on April 28, 2003, the referee entered summary judgment in favor of the Bar on May 16, 2003, in a lengthy and detailed order which outlined the referee’s reasoning. At the discipline hearing held on July 18, 2003, the respondent was given every opportunity to submit relevant testimony and evidence. The referee served his report on July 23, 2003, finding the respondent's conduct violated Rules Regulating The Florida

Bar 4-3.1 for bringing or defending a proceeding or asserting or controverting an issue therein where there is no basis for doing so that is not frivolous; and 4-8.4(d) for engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, and recommending that the respondent be publicly reprimanded by a personal appearance before the Supreme Court of Florida, undergo an evaluation by Florida Lawyers Assistance,

1 Inc., within thirty days from entry of the order of discipline for a psychological evaluation and, if treatment is deemed necessary, enter into a rehabilitation contract with Florida Lawyers Assistance, Inc., attend a CLE approved seminar on the subject of gender bias/gender sensitivity within ninety days from entry of the order of discipline, and pay the costs of this disciplinary action.

The Board of Governors of The Florida Bar considered the Report of Referee at its meeting in August, 2003, and voted not to seek an appeal. On September 19, 2003, the respondent served his petition for review and on

October 15, 2003, he served a motion for extension of time to file his initial brief. This Court granted his motion for extension of time on October 31, 2003, giving the respondent until December 15, 2003, to file his initial brief. The respondent served his Initial Brief on December 12, 2003, but because it failed to comply with Fla. R. Civ. P.

9.120(a), this Court entered an order on December 15, 2003, directing him to refile the brief on or before January 5,

2004. The respondent refiled his Initial Brief on December 31, 2003.

2 STATEMENT OF THE FACTS

In his order granting summary judgment in favor of the Bar, the referee found that the material facts that were pertinent to the issues were not in dispute. As a result, the referee did not make factual findings in his Report of

Referee.

The respondent was involved in a romantic relationship with Julie Satterfield-Parrish from approximately

October, 2000, to July, 2001. (Bar’s Complaint paragraph 3; TI pp. 5-6). Thereafter, the relationship between the respondent and Ms. Satterfield-Parrish became acrimonious (TI p. 6) and Ms. Satterfield-Parrish sought a petition for injunction against repeat violence against the respondent on or about November 21, 2001. (Bar’s Complaint paragraph 4; Appendix p. A9). On or about November 27, 2001, the respondent filed a Counter Petition for

Protection Against Repeat Violence against Ms. Satterfield-Parrish in which he included a number of statements including descriptions of Ms. Satterfield-Parrish's scars from breast augmentation surgery, the fact that she had undergone an abortion, and details of the respondent's sexual activities with Ms. Satterfield-Parrish while they were dating. (Bar’s Complaint paragraphs 6, 7; Appendix pp. A10, A14, A16-17). The respondent also included

3 statements allegedly made by Ms. Satterfield-Parrish concerning her husband's need for Viagra and his habit of

"[digging] buggers [sic] out of his nose with a finger nail he grew long.” (Bar’s Complaint paragraph 7; Appendix p.

A17).

The respondent and Ms. Satterfield-Parrish entered into a stipulation on or about December 6, 2001, settling the matter wherein they agreed to dismiss their respective petitions. (Bar’s Complaint paragraph 8; TI p. 7).

Thereafter, on or about December 11, 2001, the respondent filed another Petition for Injunction for Protection

Against Repeat Violence against Ms. Satterfield-Parrish in which he included the same scandalous and irrelevant information that he had attached to his prior counter petition. (Bar’s Compliant paragraphs 9, 11; Appendix p.

A19). On January 14, 2002, the court entered an order denying the respondent’s petition for injunction for protection against repeat violence as having “no judicial basis in law or fact” and the court reserved jurisdiction to assess attorney’s fees and costs against the respondent. (Bar’s Complaint paragraph 12; TI pp. 7-8, 15).

4 SUMMARY OF THE ARGUMENT

The respondent prepared and filed two petitions for injunction for protection against domestic violence in which he made statements concerning his former girlfriend that shock the conscience. The first petition was not adjudicated because the parties resolved it through a stipulated agreement. (Bar’s Complaint paragraph 8; TI p. 7).

The respondent made statements in his two petitions that were disparaging and humiliating. He had no legal basis for filing the second petition against Ms. Satterfield-Parrish. Furthermore, the respondent’s representation of himself pro se in filing the petitions clearly constituted the practice of law.

The respondent was afforded full due process during these proceedings. After he and the Bar moved for summary judgment, a hearing was held on July 18, 2003, and the respondent presented evidence and testimony, through counsel. (TI pp. 5-8; 14; 17-18). At the final hearing on discipline, the respondent, through counsel, presented further evidence and testimony. (TII pp. 5-16).

The respondent also argues that entry of summary judgment in favor of the Bar was erroneous because there were disputed issues of material fact. If there were disputed issues of material fact, the respondent would not have

5 moved for summary judgment. Yet the respondent filed his motion for summary judgment prior to the bar serving its motion for summary judgment. He never contested the material facts of this case and admitted filing the two petitions. (Respondent’s Answer and Defenses paragraphs 6 and 9). Only the legal issues of whether or not his conduct violated the Rules Regulating The Florida Bar remained. Therefore, the referee correctly entered summary judgment in favor of the Bar because only questions of law remained to be decided. Furthermore, a referee’s discretion in ruling on motions will be upheld by this Court absent a clear showing of abuse of that discretion. The respondent has failed to show such an abuse of discretion occurred.

The respondent erroneously argues that intent is a necessary element to prove a violation of Rule 4-8.4(d).

Intent is not an element necessary to prove a violation of Rule 4-8.4(d). The respondent also argues that there was no evidence that his second petition was frivolous. The evidence was clear and convincing that the respondent violated Rule 4-3.1. He admitted in his answer to the Bar’s Complaint that the trial court entered an order dismissing the second petition as having “no judicial basis in law or fact. . . .” ( Respondent’s Answer and Defenses paragraph

12).

6 The referee considered the respondent’s mitigation evidence. His recommendation of probation is reasonable to ensure that the respondent’s mental illness is appropriately controlled for the protection of the public.

7 ARGUMENT POINT I RULE 4-8.4(d) CAN BE APPLIED TO A LAWYER ACTING IN HIS INDIVIDUAL CAPACITY

It is well settled that a member of The Florida Bar is subject to discipline when acting in a personal capacity regardless of whether the practice of law is involved. This is because an attorney is an officer of the court and, as such, is held to a higher standard than a nonlawyer. “Even in personal transactions, attorneys must ‘avoid tarnishing the professional image or damaging the public which may rely upon their professional standing.’” The Florida Bar v. Hooper, 507 So. 2d 1078, 1079 (Fla. 1987), quoting The Florida Bar v. Bennett, 276 So. 2d 481, 482 (Fla.

1973). For example, in The Florida Bar v. Hosner, 520 So. 2d 567 (Fla. 1988), an attorney was publicly reprimanded because his automobile leasing company failed to comply with statutory requirements that it deliver a vehicle title to the purchaser within twenty days. Mr. Hosner failed to deliver the title because he had used it as collateral for personal loans. Like the respondent, Mr. Hosner argued that he should not be disciplined because his conduct did not involve the practice of law. This Court, however, disagreed, stating that if it were to follow Mr.

8 Hosner’s reasoning, it would be “. . . powerless to discipline attorneys who engage in conduct that is illegal, but not related to the practice of law. . . .” Therefore, the respondent would be subject to discipline even if the referee had found that pro se representation did not involve the practice of law.

Not only may an attorney be disciplined for engaging in misconduct that is not related to the practice of law, an attorney may be found guilty of violating R. Regulating Fla. Bar 4-8.4(d) for engaging in misconduct in connection with pro se representation. It should be noted that R. Regulating Fla. Bar 4-8.4(d) was amended in 1993.

Two cases have been decided since then where attorneys were found to have violated this rule for engaging in misconduct in connection with their own litigation. In the first case, The Florida Bar v. Kelly, 813 So. 2d 85 (Fla.

2002), an attorney brought a suit against his former client and the client’s wife in apparent retaliation for the client having filed a Bar grievance against Mr. Kelly. This Court upheld the referee’s finding that Mr. Kelly’s pro se civil suit lacked justiciable issues. As in the respondent’s case, Mr. Kelly was found to have violated a number of Rules

Regulating The Florida Bar including Rules 4-8.4(d) for engaging in conduct that was prejudicial to the administration of justice and 4-3.1 for bringing a frivolous action.

9 The second case, The Florida Bar v. Nunes, 734 So. 2d 393 (Fla. 1999), concerned an attorney who engaged in two separate acts of misconduct. In the first matter, Mr. Nunes was sued in or around 1994 or 1995 for libel by an individual who was represented by counsel. Mr. Nunes represented himself. During the course of the libel suit,

Mr. Nunes made inappropriate, frivolous, disparaging and disrespectful remarks in documents he filed with the court concerning opposing counsel and the trial judges. He was found guilty of violating R. Regulating Fla. Bar 4-

8.4(d). In the second matter, Mr. Nunes filed a civil lawsuit against several former clients in apparent retaliation for the clients having filed Bar grievances against him that resulted in his suspension from the practice of law. Mr.

Nunes represented himself. The trial court dismissed his suit with prejudice finding that there was no cause of action and there was a complete absence of justiciable issue of either law or fact making the filing of the suit frivolous. Mr.

Nunes was found guilty of violating R. Regulating Fla. Bar 4-3.1.

The Preamble to the Rules of Professional Conduct provides that a “lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass and intimidate others.” The

10 Preamble goes on to state that “[w]ithin the framework of these rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.” This Court has held that even when lawyers are acting as litigants

“they do not cast aside the oath they take as an attorney or their professional responsibilities.” The Florida Bar v.

Cibula, 725 So. 2d 360, 365 (Fla. 1998). “It is most certainly admirable to be a persistent, aggressive and innovative practitioner. It is not admirable, however, to advance frivolous claims where simple mandatory rules of procedure are disobeyed.” The Florida Bar v. Clark, 528 So. 2d 369, 372 (Fla. 1988).

Although the respondent was acting as a pro se litigant in filing the petitions, he is a member of The Florida

Bar and as such is an officer of the court. He cannot shed his mantle of responsibility to the judicial system merely by arguing that his conduct did not constitute the practice of law. It is clear from the case law above that an attorney can be disciplined for violating R. Regulating Fla. Bar 4-8.4(d) while acting in a pro se capacity in a legal proceeding.

Although the respondent argues in his Initial Brief that his statements in the petitions were protected under the

11 First Amendment, this Court has long held that attorneys, because of their standing as officers of the court, enjoy a conditional privilege that in some instances constrains their free speech rights. The Florida Bar re Amendments to

Rules Regulating The Florida Bar, 624 So. 2d 720, 721 (Fla. 1993). It is a generally accepted principal that states have a compelling interest in the practice of the professions within their boundaries and as a part of the states’ powers to protect the public health, safety and other valid interests they have broad powers to establish standards for licensing professionals and regulating the practice of professions. The Florida Bar v. Went For It, Inc., 515

U.S. 618, 625 (1995). The Bar has a substantial interest both in protecting litigants from disparaging conduct by attorneys and in preventing the erosion of confidence in the legal profession such behavior engenders. The respondent enjoys no greater rights than any other attorney in a disciplinary action. Constitutional rights must always be safeguarded, although because lawyers are members of a privileged profession, obedience to ethical rules may require abstention from what in other circumstances would be constitutionally protected behavior. American

Civil Liberties Union of Florida, Inc. v. The Florida Bar, 744 Fed. Supp. 1094, 1097 (N.D. Fla. 1990). Rule 4-

8.4(d) seeks to regulate coercive conduct and not speech.

12 The case law shows that attorneys can be disciplined for making statements in connection with the practice of law that are disparaging and that their comments are not protected by the First Amendment. For instance, in The

Florida Bar v. Ray, 797 So. 2d 556 (Fla. 2001), an attorney was publicly reprimanded for writing several letters to the Chief Immigration Judge questioning the integrity and veracity of an immigration judge before whom Mr. Ray appeared on behalf of clients. Mr. Ray had no objectively reasonable basis in law or fact for making the accusations. Similarly, the referee in the respondent’s case found he had no justification for including the irrelevant and highly personal comments in his petitions. (TII p. 20).

In The Florida Bar v. Sayler, 721 So. 2d 1152 (Fla. 1998), an attorney was publicly reprimanded for sending a threatening letter to opposing counsel. Mr. Sayler, like the respondent, was found guilty of violating R. Regulating

Fla. Bar 4-8.4(d). He too argued that his statements in the letter were protected speech. This Court disagreed, noting that the First Amendment does not afford protection to attorneys who make harassing or threatening remarks.

In The Florida Bar v. Wasserman, 675 So. 2d 103 (Fla. 1996), an attorney was suspended for six months

13 after he engaged in two acts of misconduct, one of which involved his verbal abuse of a judicial assistant. Mr.

Wasserman claimed the profane comments he made to the judicial assistant were protected by the First

Amendment. This Court disagreed.

The Bar further submits the respondent’s arguments that imposing a disciplinary sanction against him in this case would prevent attorneys from seeking redress in court under the same terms as a non-lawyer and would chill the rights of all attorneys to access the courts are without merit. The attorney in Clark, 528 So. 2d at 369, made similar arguments. He too claimed that imposing disciplinary sanctions against him would violate his first amendment rights and his right of access to the court system. This Court found that curtailing Mr. Clark’s “abuse of the court system” would not deny him access to the courts nor would it violate his constitutional rights. Clark,

528 So. 2d at 372. Likewise, imposing disciplinary sanctions against the respondent would not discourage or prevent attorneys from accessing the courts as pro se litigants. As this Court noted, quoting Judge Benjamin

Cardozo, “‘[m]embership in the bar is a privilege burdened with conditions.’” The Florida Bar re Amendments to the Rules Regulating The Florida Bar, 624 So. 2d at 721, citing In re Rouss, 221 N.Y. 81, 116 N. E. 782, 783

14 (1917), cert. den. 246 U. S. 661 (1918). The respondent cites no authority to support his argument that an attorney acting in a pro se capacity should be treated differently from an attorney who is representing a client. Requiring attorneys who are pro se litigants to observe the Rules Regulating The Florida Bar does not hamper proper utilization of the court system. In fact, holding such pro se attorneys accountable for their actions protects the judicial system from abuse.

15 POINT II THE REFEREE PROPERLY EXERCISED HIS DISCRETION IN GRANTING THE FLORIDA BAR’S MOTION FOR SUMMARY JUDGMENT

The respondent was not denied his due process rights in this case. The respondent was never denied any opportunity to present evidence either at the hearing on the motions for summary judgment or at the final hearing on discipline. In fact, he provided his defenses in affidavit form as well as testimony to the referee at both the hearing on the motions for summary judgment and at the final hearing.

The referee did not abuse his discretion in ruling in favor of the Bar on its motion for summary judgment. A referee has the discretion to grant or deny motions in Bar disciplinary proceedings. The Florida Bar v. Roth, 693

So. 2d 969, 972 (Fla. 1997). Such rulings will not be disturbed absent a clear abuse of discretion. The Florida Bar v. Lusskin, 661 So. 2d 1211, 1213 (Fla. 1995). The referee correctly applied the law governing the granting of such motions. Pursuant to Fla. R. Civil P. 1.510, a summary judgment may be had only where the pleadings, answers to interrogatories and admissions show no genuine issue as a matter of law. The motion for summary judgment must

16 show the facts are so crystallized that nothing remains but questions of law, Moore v. Morris, 475 So. 2d 666, 668

(Fla. 1985), and those facts must show that the party moved against cannot prevail as a matter of law. Fla. R. Civ.

P. 1.510(c); Carpineta v. Shields, 70 So. 2d 573, 574 (Fla. 1954). The court must draw every possible inference in favor of the party against whom summary judgment is sought. Moore, 475 So. 2d at 668. A motion for summary judgment cannot be granted where differing conclusions or inferences can be drawn from the facts. Moore, 475 So.

2d at 668.

The issues in this case were particularly crystallized and appropriate for summary judgment. If the material facts were in dispute, the respondent would not have moved for summary judgment. The only question of law remaining was whether the respondent’s actions violated the Rules Regulating The Florida Bar. The respondent admitted that he filed the petitions for injunctive relief and that the trial court entered an order denying the second petition finding that it had no basis in law or fact. (Response to Requests for Admission). In fact, the respondent moved for summary judgment himself prior to the Bar moving for summary judgment. The respondent served his motion on March 12, 2003, and the Bar did not serve its motion until March 21, 2003. The respondent’s motion for

17 summary judgment demonstrates the case was appropriate for summary judgment. Only questions as to legal issues remained. The veracity of the statements in his petitions was never at issue and the question of his intent was not dispositive of the issues.

The respondent’s argument that R. Regulating Fla. Bar 4-8.4(d) has a scienter requirement is erroneous. The wording of the rule provides that an attorney may violate it through “callous indifference.” The comment to the rule notes that the “proscription [against any discriminatory conduct by an attorney while performing duties in connection with the practice of law] extends to any characteristic or status that is not relevant to the proof of any legal or factual issue in dispute.” This question of law is not dependent upon intent.

Although the respondent was a new practitioner at the time the misconduct occurred, having been admitted to the practice of law in Florida in September, 2000 (TI p. 5; TII p. 10), and was inexperienced, he was a forty-two year old man at the time. It cannot be argued in good faith that the respondent, a middle-aged man, lacked the life experience and wisdom necessary to realize that the statements he wrote in the petitions would cause public humiliation and embarrassment to Ms. Satterfield-Parrish.

18 Furthermore, a reading of the two petitions reflects that the respondent reasonably knew or should have known that the information he was including was neither necessary nor relevant to obtain the relief he sought from the court. One section of the form the respondent used in preparing his petitions calls for a physical description of the party against whom the injunction is being sought. In this section, the respondent described scars Ms.

Satterfield-Parrish had under her breasts as a result of “augmentation” surgery. This gratuitous information was not necessary to include in order for law enforcement officers to make a positive identification of Ms. Satterfield-

Parrish under any reasonable circumstance. Further, although the respondent argues that in his mind Ms. Satterfield-

Parrish committed acts that caused the respondent to fear for his safety, the majority of the respondent’s statements in the two petitions were from the time period when he and Ms. Satterfield-Parrish were dating and not from the time period during which the alleged acts giving rise to the respondent’s fears occurred. Many of the respondent’s statements concerned consensual sexual activities rather than conduct that was indicative of a propensity toward violent or dangerous behavior. The respondent’s arguments and excuses for his conduct ring hollow when the actual text of the comments he handwrote in his petitions are read. Simply put, there is no excuse, legal or

19 otherwise, for relating in a publicly filed legal document information concerning Ms. Satterfield-Parrish’s abortion that she underwent while dating the respondent, the frequency of her sexual activities, her sexual preferences, the various places where the respondent and Ms. Satterfield-Parrish engaged in sexual relations while they were dating, derogatory statements Ms. Satterfield-Parrish made about her husband (the respondent’s counsel in these proceedings) during the time she was dating the respondent, and Ms. Satterfield-Parrish’s use of expletives and sexually explicit language during the time she was dating the respondent. The respondent set forth unnecessarily intimate details in legal pleadings filed in the public records of the county where Ms. Satterfield-Parrish and her two minor daughters lived. The respondent knew or reasonably should have known that the petitions were available for public consumption. The respondent knew or reasonably should have known that Ms. Satterfield-Parrish would feel humiliated and embarrassed to know that her friends, neighbors, and acquaintances could read the lurid details of her sexual activities with the respondent merely by requesting a copy of either of the two petitions from the clerk’s office. Therefore, the referee was correct in his assessment, after having read the two petitions, that “. . . Attorney

Cohen should have known that the multiple scandalous and utterly inappropriate statements that he made in his

20 petitions could result in nothing other than humiliation. . . .” (ROR-A4). The referee was correct in determining that the respondent should have known the outcome of his conduct even if did not intend to humiliate Ms. Satterfield-

Parrish. (ROR-A4). The referee found that the evidence clearly and convincingly showed the respondent made “. . . great effort . . . to include totally irrelevant information.” (TII p. 20). Therefore, even if the respondent did not intend to humiliate Ms. Satterfield-Parrish, he acted with gross recklessness and “callous indifference” as to the effect his actions would have on her. Further, he did this not once, but twice, by filing the subsequent petition. The

Bar submits the evidence clearly established that the respondent’s calculated actions were to humiliate his former girlfriend.

Although the respondent argues that his conduct should be excused because he had no more knowledge or experience with litigation than any other pro se litigant, such position is without merit. The respondent is not a layperson handling his own lawsuit. He is a trained attorney educated in the law and in legal proceedings. Pursuant to R. Regulating Fla. Bar 3-4.1, every member of The Florida Bar is charged with knowing the Rules Regulating

The Florida Bar. Even though the respondent was a recent admittee who did not engage in litigation (TI p. 5), the

21 instructions of the petition form he used were clear and self-explanatory, even to a lay person, as to the type of information to include. The form directed the applicant to set forth at least two incidents of violence, which was defined as assault, battery, sexual battery, or stalking, committed against the applicant. At least one of these violent episodes needed to have occurred within the previous six months. The applicant was directed to set forth the details of the most recent incident of violence. The respondent chose to disregard these instructions. The respondent did not need to be a litigator to understand that this petition form was not seeking details of his sexual relationship with Ms. Satterfield-Parrish. The respondent did not describe any acts of violence, as defined by the form, that occurred during the time they were dating which might make the details of their intimate relationship relevant to the most recent alleged acts giving rise to his concerns for his safety.

The respondent requests that these proceedings be remanded to a new referee for a full evidentiary hearing is without legal basis. The respondent was not prejudiced by the summary judgment ruling because he was never denied an opportunity to present any evidence. It is unnecessary to remand the case for further hearings.

Furthermore, the respondent has presented no authority to support his request that the matter be remanded to a new

22 referee. The respondent has never moved to recuse the referee here and has no legal basis for doing so at the appellate level.

23 POINT III THE REFEREE’S FINDING THAT RESPONDENT’S CONDUCT VIOLATED RULE 4-3.1 WAS SUPPORTED BY THE EVIDENCE

The Bar’s Complaint alleges that the respondent violated R. Regulating Fla. Bar 4-3.1 in filing his second petition because it was that petition the trial court dismissed as being without merit. (The Florida Bar’s Complaint paragraph 12). Therefore, the respondent’s argument in his Initial Brief that the Bar’s Complaint did not allege the second petition violated R. Regulating Fla. Bar 4-3.1 is erroneous.

Rule 4-3.1 proscribes a lawyer from bringing, or defending a proceeding or asserting or controverting an issue therein, unless there is a basis for doing so that is not frivolous. The comment to the rule states that an action may be considered frivolous if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring another. Further, the comment provides that an action may be considered frivolous if the attorney cannot make a good faith argument on the merits of the action taken or cannot support the action taken by a good faith extension, modification, or reversal of existing law. This Court has defined a frivolous claim, in part, as one where there is a complete lack of justiciable issues. Whitten v. Progressive Casualty Insurance Co., 410 So. 2d

24 501, 505 (Fla. 1982). Although the trial court’s order dismissing the respondent’s second petition for protection against domestic violence was not placed into evidence because the Bar’s motion for summary judgment was granted, the respondent has appended a copy of it to his Initial Brief as exhibit “F.” The Bar has no objection to the inclusion of this court order. The trial court specifically found

“. . . there was no judicial basis in law or fact for bringing the instant action by Randall J. Cohen . . . ” and it reserved jurisdiction to assess fees and costs against him. (The Florida Bar’s Complaint paragraph 12, Exhibit F to respondent’s Initial Brief). This language appears to comport with the definition of what constitutes a frivolous claim. Florida Statutes section 57.105 governs the award of fees and costs in the event a court finds that a claim or defense was not supported by the material facts necessary to establish the claim or defense or if the court finds the claim or defense was not supported by the application of case law to those material facts. There is no requirement that the court use the word “frivolous” in its order. The trial court found the respondent’s second petition to be frivolous and dismissed it, reserving the authority to assess costs pursuant to Fla. Stat. §57.105.

It is well settled that an attorney may be disciplined for bringing a frivolous action, even if it is brought in the

25 attorney’s individual capacity rather than on behalf of a client. In Kelly, 813 So. 2d at 85, an attorney was suspended for ninety-one days for engaging in several acts of misconduct, including bringing a suit against a former client that lacked justiciable issues. Among other rules, Mr. Kelly was found guilty of violating Rule 4-3.1.

In Nunes, 734 So. 2d at 393, an attorney was suspended for three years for, among other acts of misconduct, bringing a suit against former clients where the trial court in the civil suit found there was a complete absence of justiciable issue of law or fact thus making the suit frivolous.

Although the respondent argues that if the allegations contained in his second petition were in fact truthful he would have prevailed in his action, the respondent fails to appreciate that the truthfulness of the allegations was not determinative of whether he had a valid cause of action against Ms. Satterfield-Parrish in the second injunctive case.

In fact, the truthfulness of the allegations has never been an issue because it is irrelevant in determining whether the respondent’s statements in both petitions violated R. Regulating Fla. Bar 4-8.4(d) and whether he had a valid cause of action in filing the second petition. The veracity of the statements would be a question of fact. The Bar’s allegations concern only questions of law.

26 27 POINT IV THE REFEREE’S RECOMMENDATION THAT RESPONDENT UNDERGO PSYCHOLOGICAL TESTING OR COUNSELING WAS SUPPORTED BY THE EVIDENCE

The referee found that the respondent’s mental health condition caused him to file the two petitions with the scandalous and disparaging comments concerning his former girlfriend. (ROR-A6). The referee recommended that, as a probationary term, the respondent be evaluated by Florida Lawyers Assistance, Inc., to ensure that his anxiety disorder is under control and will not adversely affect his ability to practice law. (ROR-A6). The respondent need do nothing further if this evaluation determines that no further treatment is necessary. (ROR-A6). This is not a disciplinary sanction. It is for the protection of the public which is one of the major goals of Bar disciplinary cases.

The Florida Bar v. Spears, 786 So. 2d 516, 520 (Fla. 2001). The Bar submits the recommendation of an evaluation and treatment, if deemed necessary, is especially important in light of the fact the respondent was being treated for his anxiety disorder at the time the misconduct occurred. (TII p. 13). At the final hearing, the respondent presented no documentary evidence concerning his anxiety disorder and current treatment. (TII p. 13). He merely stated,

28 through counsel, that it is currently under control because his medication has been increased. (TII p. 13).

29 CONCLUSION

WHEREFORE, The Florida Bar prays this Honorable Court will uphold the referee's findings of fact and recommendation of a public reprimand by personal appearance before this Court, submission to an evaluation by

Florida Lawyers Assistance, Inc., within thirty days from entry of the order of discipline for a psychological evaluation and, if treatment is deemed necessary, entry into a rehabilitation contract with Florida Lawyers

Assistance, Inc., attendance at a CLE approved seminar on the subject of gender bias/gender sensitivity within ninety days from entry of the order of discipline, and payment the costs of the disciplinary action now totaling

$1,454.17.

Respectfully submitted, JOHN F. HARKNESS, JR. Executive Director The Florida Bar 651 East Jefferson Street, Tallahassee, Florida 32399-2300 (850) 561-5600 ATTORNEY NO. 123390

JOHN ANTHONY BOGGS

30 Staff Counsel The Florida Bar 651 East Jefferson Street, Tallahassee, Florida 32399-2300 (850) 561-5600 ATTORNEY NO. 253847

AND

JAN K. WICHROWSKI Bar Counsel The Florida Bar 1200 Edgewater Drive Orlando, Florida, 32804-6314 (407) 425-5424 ATTORNEY NO. 381586 By: ______Jan K. Wichrowski Bar Counsel

31 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven (7) copies of The Florida Bar’s Brief and Appendix have been sent by regular U.S. Mail to the Clerk of the Court, The Supreme Court of Florida, Supreme Court Building,

500 S. Duval Street, Tallahassee, Florida, 32399-1927; a copy of the foregoing has been furnished by regular U.S.

Mail to Jon D. Parrish, counsel for respondent, 3431 Pine Ridge Road, Suite 101, Naples, Florida, 34109; and a copy of the foregoing has been furnished by regular U.S. Mail to Staff Counsel, The Florida Bar, 651 East

Jefferson Street, Tallahassee, Florida 32399-2300, this day of January, 2004.

Respectfully submitted,

______JAN K. WICHROWSKI Bar Counsel

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

Undersigned counsel does hereby certify that the Brief of The Florida Bar is submitted in 14 point proportionately spaced Times New Roman font, and that the computer disk filed with this brief has been scanned and found to be free of viruses, by Norton AntiVirus for Windows.

JAN K. WICHROWSKI Bar Counsel ATTORNEY NO. 381586

33 IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant, Case No. SC03-153 [TFB Case No. 2002-11,379(05A)] v.

RANDALL J. COHEN,

Respondent. ______/ APPENDIX TO COMPLAINANT'S ANSWER BRIEF JOHN F. HARKNESS, JR. Executive Director The Florida Bar 651 East Jefferson Street, Tallahassee, Florida 32399-2300 (850)561-5600 ATTORNEY NO. 123390

JOHN ANTHONY BOGGS Staff Counsel The Florida Bar 651 East Jefferson Street, Tallahassee, Florida 32399-2300

34 (850)561-5600 ATTORNEY NO. 253847

AND

JAN K. WICHROWSKI Bar Counsel The Florida Bar 1200 Edgewater Drive Orlando, Florida, 32804-6314 (407)425-5424 ATTORNEY NO. 381586 INDEX

PAGE

Report of Referee ...... A1

Counter Petition for Injunction Against Repeat Violence ...... A9

Petition for Injunction for Protection Against Repeat Violence ...... A19

35