You are on page 1of 28

IN THE SUPREME COURT OF FLORIDA

IN RE: PETITION FOR REINSTATEMENT, Supreme Court Case


OF CORNELIUS SHIVER, JR., No. SC11-129

Appellant/Petitioner,

v. The Florida Bar File


No. 2011-70,736(11J-MRE)
THE FLORIDA BAR,

Appellee/Respondent.
/

THE FLORIDA BAR’S ANSWER BRIEF ON APPEAL

THOMAS ALLEN KROEGER


Bar Counsel
Florida Bar No. 0019303
The Florida Bar
444 Brickell Avenue, Suite M-100
Miami, Florida 33131
(305) 377-4445

KENNETH LAWRENCE MARVIN


Staff Counsel
Florida Bar No. 0200999
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600

JOHN F. HARKNESS, JR.


Executive Director
Florida Bar No. 0123390
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600
TABLE OF CONTENTS
PAGE

Table of Contents ................................................................................. ii

Table of Authorities ............................................................................. iii-iv

Symbols and References...................................................................... v

Statement of the Case and of the Facts ................................................ 1-9

Summary of the Argument .................................................................. 10

Argument ............................................................................................. 11-21

I. THE REFEREE PROPERLY CONCLUDED THAT


PETITIONER LACKED THE REQUISITE FITNESS TO
RESUME THE PRACTICE OF LAW BASED UPON
EVIDENCE OF DISQUALIFYING CONDUCT AND LACK
OF CANDOR IN THE REINSTATEMENT PROCESS……. 11-18
(Responding to Points I and II of Respondent’s Initial Brief.)

II. PETITIONER WAS NOT PREJUDICED BY THE DELAY IN


THE SUBMISSION OF THE REPORT OF REFEREE
WHICH CONTAINS FINDINGS CONSISTENT WITH THE
EVIDENCE……................................................................... 19-21
(Responding to Point III of Respondent’s Initial Brief.)

CONCLUSION..................................................................................... 22

CERTIFICATE OF SERVICE.............................................................. 23

CERTIFICATE OF TYPE, SIZE, AND STYLE…………………….. 23

APPENDIX....................…………………………………………….... 24

ii
TABLE OF AUTHORITIES

CASES: PAGE

The Florida Bar re Dunagan, 775 So.2d 959 (Fla. 2000).............. 11

The Florida Bar re Grusmark, 662 So.2d 1235 (Fla.1995)......... 11, 13, 14

The Florida Bar v. Guard, 453 So.2d 392 (Fla. 1984).................. .. 19

The Florida Bar re Jahn, 559 So.2d 1089 (Fla. 1990).................... 20

The Florida Bar re Janssen, 643 So.2d 1065 (Fla. 1994) .............. 20

The Florida Bar v. Lehrman, 485 So.2d 1276 (Fla. 1986)............. 20

The Florida Bar re McGraw, 903 So.2d 905, (Fla. 2005).............. 11

The Florida Bar v. Murphy, 614 So.2d 1090 (Fla. 1993)............... 19

The Florida Bar v. Rubin, 709 So.2d 1361 (Fla. 1998).................. 20

The Florida Bar re Wolf, 21 So.3d 15 (Fla. 2009)......................... 11, 14

OTHER AUTHORITIES:

Rules Regulating The Florida Bar:

3-6.1(e)................................................................................................. 8, 10, 15, 16

3-7.10.................................................................................................... 11, 18

3-7.10(e)............................................................................................... 17

3-7.10(f)............................................................................................... 12, 13

3-7.10(f)(1)(G).................................................................................... 12

3-7.10(f)(1)(H)..................................................................................... 12

iii
3-7.10(f)(2)(I)....................................................................................... 12

iv
SYMBOLS AND REFERENCES

For the purpose of this brief, Cornelius Shriver, Jr. will be referred to as

“Petitioner”. The Florida Bar may be referred to as “The Florida Bar” or the

“Bar”. The referee will be referred to as the “Referee”. Additionally, the Rules

Regulating The Florida Bar will be referred to as the “Rules”.

References to the Report of Referee will be by the symbol “ROR” followed

by the corresponding page number(s). References to the transcript of the final

hearing held on May 13, 2011 will be by the symbol “TR” followed by the

corresponding page number(s). References to the transcript of the telephonic

hearing held on April 15, 2011 will be by the symbol “THTR” followed by the

corresponding page number(s).

References to the Appendix will be set forth as “A” followed by the

sequence number and corresponding page number(s), if applicable. Finally, any

references to Petitioner’s Initial Brief will be by the symbol “PIB” followed by the

corresponding page number(s).

v
STATEMENT OF THE CASE AND OF THE FACTS

On January 24, 2011, Petitioner filed his Petition for Reinstatement. 1 By

order of this Court, dated January 31, 2011, the Chief Judge of the Eleventh

Judicial Circuit was directed to appoint a Referee to preside over these

proceedings. On February 9, 2011, the Honorable Orlando A. Prescott was

appointed Referee.

On February 2, 2011, the Bar sent correspondence to Petitioner generally

outlining those items necessary for its investigation into Petitioner’s fitness to

resume the practice of law. This letter stated that the Bar would subpoena deposit

slips and bank statements for those accounts in which Petitioner was a signatory.

(A2 at 1). 2

After receiving a response from Petitioner identifying two bank accounts in

which he was a signatory, the Bar sent additional correspondence on February 24,

2011 alerting Petitioner to the fact that he was delinquent in his Continuing Legal

1
On November 7, 2005, by Order of the Florida Supreme Court in Case No.
SC04-444, Petitioner was suspended from the practice of law for eighteen (18)
months as a result of his failure to pay child support. Subsequently on April 10,
2007, Petitioner was suspended for an additional three (3) years by Order of the
Florida Supreme Court in Case No. SC06-968 for engaging in the practice of law
while he was delinquent for failing to pay disciplinary costs. This latter suspension
became effective on June 8, 2007.
2
The Bar’s letter of February 2, 2011 was originally attached as Exhibit “A” to
Petitioner’s Objections to The Florida Bar’s Motion for Continuance of Final
Hearing.
1
Education Requirements as of September 30, 2009. Petitioner was advised that

although he may satisfy the requirements prior to the final hearing on his Petition

for Reinstatement, his failure to have done so prior to the end of the specified

reporting period may still constitute neglect of his professional obligations. (A3). 3

On March 8, 2011, the Bar supplemented its informal request for

information contained in the letter of February 2, 2011 with its Interrogatories and

Request for Production of Documents. The Bar requested, among other things,

original bank statements, canceled checks and items of deposit for all accounts in

which Petitioner was a signatory. After reviewing Petitioner’s responses, the Bar

sent additional correspondence on April 7, 2011 identifying the specific

information still outstanding. This included complete bank records for the three

(3) accounts Petitioner indicated he was a signatory on, 4 Internal Revenue Service

income tax returns, records regarding a student loan with the U.S. Department of

Education and records pertaining Petitioner’s sale of real property in 2008. (A4).5

3
The Bar’s letter of February 24, 2011 was originally attached as Exhibit “B” to
Petitioner’s Objections to The Florida Bar’s Motion for Continuance of Final
Hearing.
4
The Florida Bar requested records pertaining to the following bank accounts:
Petitioner’s IOTA account maintained at Wachovia Bank, N.A.; a joint savings
account maintained at Coconut Grove Bank; and a joint interest checking account
maintained at Bank of America, N.A.
5
The Bar’s letter of April 7, 2011 was originally attached as Exhibit “A” to The
Florida Bar’s Motion for Continuance of Final Hearing.
2
On April 8, 2011, the Bar filed a motion to continue the final hearing previously

scheduled for May 6, 2011. (A5). Petitioner provided an assortment of additional

bank records on April 11, 2011, and on April 14, 2011, filed his objection to the

Bar’s motion to continue. (A6).

A telephonic hearing on the Bar’s motion to continue was held on April 15,

2011 at which time the Bar identified those documents that remained outstanding

and were necessary to complete its investigation into Petitioner’s fitness.

Specifically, the Bar requested that Petitioner provide the following outstanding

information: Petitioner’s Internal Revenue Service income tax returns, monthly

bank statements and supporting documentation for the three (3) accounts Petitioner

was a signatory on, information regarding Petitioner’s student loan obligations and

records regarding the real property that Petitioner sold in 2008. (THTR at 4-7).

After hearing argument, the Referee granted the Bar’s request to continue the final

hearing and ordered Petitioner to provide income tax returns, documentation

pertaining to the Bank of America account, information regarding his student loan

obligations and records for the sale of the real property. (THTR at 34, 35). The

Referee further ordered that Petitioner provide the documentation by April 25,

2011. (THTR at 39). Petitioner subsequently served additional production on

April 25, 2011.

3
A final hearing was held on May 13, 2011. 6 In addition to his own

testimony, Petitioner presented the testimony of three (3) witnesses in support of

his reinstatement: Charles Mays, Esquire; Dewayne Terry, Esquire; and Dahlia

Officer. (ROR at 3). Charles Mays testified that he was currently employed as

counsel to the City of Miami Civilian Investigative Panel, and had held that

position since 2005 or 2006. (ROR at 3; TR at 15). Mays further testified that he

is familiar with Petitioner’s professional ability, both as an attorney and as a

volunteer member of the Civilian Investigative Panel. (ROR at 4; TR at 16, 19,

20). However, Mays testified on cross-examination that he asked Petitioner to

resign from his position in the hopes of preventing a rupture among the panel

members after a City of Miami Commissioner learned of Petitioner’s disciplinary

history. (ROR at 4; TR at 23, 24).

Dewayne Terry testified that he had previously practiced with Petitioner,

and although aware of his suspensions, felt he possessed the requisite professional

ability. (ROR at 4, TR at 28-31). Terry further testified that he was familiar with

Petitioner’s volunteer service in the community and his caretaking responsibilities

for his elderly mother, and that Petitioner had shown remorse and regret. (ROR at

4; TR at 31, 32).

Dahlia Officer testified that she knows Petitioner professionally, having


6
The two volume transcript of the final hearing incorrectly states that it was
conducted on April 13, 2011.
4
once worked with him as an assistant, and personally, as the mother of his infant

child. (ROR at 4, TR at 43). She further testified that she is aware of his

caretaking responsibilities for his elderly mother and adult daughter, and that he

periodically supplies food and clothing for their child as well as taking custody of

the child for approximately three (3) days a week. (ROR at 5; TR at 45-48).

Petitioner recounted his positive action by volunteering on the City of

Miami Civilian Investigative Panel and the City of Miami Zoning Board, raising

money for a local nursery, and sponsoring a spring break camp. (ROR at 5; TR at

60, 61, 63, 65, 66). Petitioner also testified to taking care of his elderly mother and

daughter. (ROR at 5; TR at 55, 66, 67). Regarding his financial situation,

Petitioner testified that, although he had substantial obligations, he had not

incurred any additional debt since the effective date of the suspension. (ROR at 5;

TR at 51). Petitioner testified that he had been paying child support during the

suspension and had reduced the overall arrears. (ROR at 5; TR at 67). However,

Petitioner testified on cross examination that he had not made any child support

payments since May, 2010, and was still approximately $48,000.00 in arrears.

(ROR at 5, 6; TR at 73). He also testified that he was past due on his student loan

obligations and was delinquent on his property taxes. (ROR at 6; TR at 75, 78,

79).

Petitioner also testified on cross examination that he had not paid his 2010

5
Bar membership dues, had not petitioned for removal of his Continuing Legal

Education Requirement delinquency and did not file a 2008 income tax return even

though he received significant benefits from the sale of jointly-owned property.

(ROR at 6; TR at 79, 80, 83, 88).

In addition to witness testimony, Petitioner introduced affidavits from seven

(7) individuals attesting to his character and fitness to resume the practice of law:

Jason Tracey, Esquire; Dewayne Terry, Sr., Esquire; Constance Gilbert; Pierre

Sands, Robert Young, Esquire; Miriam Arthur; and Charles Gibson, Esquire.

(ROR at 3). Finally, Petitioner introduced several other exhibits including a copy

of his Oath of Office for the City of Miami Civilian Investigative Panel and his

Oaths of Office for the City of Miami Zoning Board. (ROR at 3).

In opposition to Petitioner’s reinstatement, The Florida Bar introduced the

testimony of its Staff Investigator, Arthur Gill, and its Staff Auditor, Thomas

Duarte. (ROR at 3). Arthur Gill testified that he conducted a search of county

recorder and court records and discovered three judgments that had been recorded

against Petitioner but had not been satisfied. (ROR at 6, 7; TR at 118-122, 124).

Gill testified that he contacted the holders of two of the judgments who confirmed

that they remained outstanding. (ROR at 6, 7; TR at 121, 122, 124, 127). 7 Gill

7
Although The Florida Bar introduced a HUD-1 Settlement Statement indicating
that a portion of the proceeds of the sale of real property held by Petitioner was
withheld by the settlement agent to be applied towards one of these judgments, the
6
also testified that he had a conversation with an individual named Charles Cutler

who claimed Petitioner had agreed to represent him in a civil matter without

disclosing that he was suspended from the practice of law. (ROR at 7; TR at 127-

129). However, Gill testified on cross examination that he had only spoken with

Cutler once, was not aware of the details of a criminal case brought against Cutler

or that Petitioner was a witness for the State in that criminal case. (ROR at 7; TR

at 137, 141-143).

Thomas Duarte testified that Petitioner did not provide any actual copies of

Internal Revenue Service income tax returns, but rather two transcripts and one

wage and income statement. (TR at 149, 150). Duarte also testified that Petitioner

failed to provide complete financial records for the three (3) accounts he was a

signatory on, and that this prevented him from performing an audit of those

accounts. (ROR at 7, 8; TR at 152-159).

The Florida Bar also introduced the affidavits of three personnel members

in its Lawyer Regulation office: Willie Mae Sheperd, Michelle Francis and Adam

Stetson. (ROR at 8). These affidavits established that Petitioner failed to pay his

2010 Bar membership dues, failed to petition for the removal of his Continuing

Legal Education Requirement delinquency, and failed to submit timely sworn

Staff Investigator testified that the holder of this judgment had not been paid. (TR
at 121, 122).

7
quarterly employment reports as required by Rule 3-6.1(e) of the Rules Regulating

The Florida Bar. (A7, A8, A9)

On November 9, 2011, the Clerk of the Supreme Court of Florida sent

correspondence to the Referee requesting that he file his Report immediately or

request an extension of time. On November 18, 2011, the Referee served his

Report of Referee, although it was not docketed at the Florida Supreme Court until

December 5, 2011. The Referee found that Respondent had produced evidence of

positive action through community and civic service, but also that he had engaged

in disqualifying conduct and failed to act with the requisite candor in the

reinstatement process. (ROR at 8, 9). Specifically, the Referee found that

Petitioner was not candid by virtue of his failure to provide complete financial

records. (ROR at 8, 9). Further, the Referee found Petitioner financially

irresponsible in that he was delinquent in his child support payments, past due on

his student loan obligations and significantly behind on his property taxes. (ROR

at 9). Finally, the Referee found that Petitioner had failed to pay his Bar

membership dues, failed to petition for removal of his Continuing Legal Education

Requirement delinquency and failed to submit quarterly employment reports

required by Rule 3-6.1(e) of the Rules of Discipline. (ROR at 9). Ultimately, the

Referee recommended the Petition for Reinstatement be denied.

Petitioner filed a Petition for Review of the Report of Referee on January 3,

8
2012, and served his Initial Brief on March 8, 2012. The Florida Bar moved for an

extension of time, and was granted up to and including April 23, 2012 in which to

file its Answer Brief. The Florida Bar’s Answer Brief now follows.

9
SUMMARY OF THE ARGUMENT

The Referee’s finding that Petitioner failed to demonstrate, by clear and

convincing evidence, that he possesses the requisite fitness to resume the practice

of law is amply supported by the record.

Petitioner’s failure to pay child support, his student loan obligations and his

property taxes supports the Referee’s finding that he is financially irresponsible.

Further, Petitioner’s failure to pay his Bar membership dues, remove his

Continuing Legal Education Requirement delinquency and submit required

quarterly Rule 3-6.1(e) reports during his suspension supports a finding that he has

neglected his professional obligations. Additionally, Petitioner’s failure to produce

complete financial records supports the Referee’s finding that he did not

demonstrate the requisite candor during the reinstatement process. Finally, the

delay in the issuance of the Report of Referee was not unreasonable, Petitioner

cannot demonstrate any prejudice as a result and the Referee’s findings are

consistent with the evidence.

It is the position of The Florida Bar that the Referee properly recommended

the denial of the Petition for Reinstatement based on the record evidence and

existing case law.

10
ARGUMENT

I. THE REFEREE PROPERLY CONCLUDED THAT PETITIONER


LACKED THE REQUISITE FITNESS TO RESUME THE
PRACTICE OF LAW BASED UPON EVIDENCE OF
DISQUALIFYING CONDUCT AND LACK OF CANDOR IN THE
REINSTATEMENT PROCESS.
(Responding to Points I and II of Respondent’s Initial Brief.)

A petitioner seeking reinstatement to The Florida Bar must establish by clear

and convincing evidence that he has met the criteria set forth in Rule 3-7.10 of the

Rules Regulating the Florida Bar and the decisions of this Court. The Florida Bar

re McGraw, 903 So.2d 905, 909 (Fla. 2005). While this Court has a wide scope of

review with regard to the referee’s legal conclusions, the party seeking review has

the burden of demonstrating that the report is erroneous, unlawful or unjustified.

The Florida Bar re Dunagan, 775 So.2d 959, 961 (Fla. 2000) (quoting The Florida

Bar re Grusmark, 662 So.2d 1235, 1236 (Fla.1995)). “In evaluating a referee’s

recommendation as to reinstatement, we will generally not second-guess the

referee where the recommendation has a basis in existing case law.” The Florida

Bar re Wolf, 21 So.3d 15, 18 (Fla. 2009). In the instant case, competent and

substantial evidence of Petitioner’s disqualifying conduct and lack of character and

fitness provide ample support for the Referee’s recommendation that the Petition

for Reinstatement be denied. Consequently, Petitioner’s argument that the Report

of Referee is erroneous and unjustified lacks merit.

11
Rule 3-7.10(f) states that the referee, in determining the fitness of a

petitioner to resume the practice of law, “shall consider whether the petitioner has

engaged in any disqualifying conduct, the character and fitness of the petitioner,

and whether the petitioner has been rehabilitated.” The financial irresponsibility

of a petitioner shall be considered disqualifying conduct. R. Regulating Fla. Bar

3-7.10(f)(1)(G). Neglect of professional obligations shall also constitute

disqualifying conduct. R. Regulating Fla. Bar 3-7.10(f)(1)(H). Furthermore, in

evaluating a petitioner’s character and fitness, a referee should consider whether a

petitioner demonstrated the requisite candor in the discipline and reinstatement

processes. R. Regulating Fla. Bar 3-7.10(f)(2)(I).

A. Financial Irresponsibility

The record in the present case is replete with instances of Petitioner’s

financial irresponsibility. Petitioner himself testified on cross examination that, at

the time of the final hearing, he was delinquent in his child support payments

(having not made a payment since May, 2010) and was approximately $48,000.00

in arrears (TR at 73). In addition, Petitioner testified that he had a past due balance

on his student loan in the amount of $1,893.92, that the last payment applied

towards the balance came by way of an Internal Revenue Service off-set from his

2008 income tax return and that he had not requested a deferment or forbearance

on the loan. (TR at 75, 76). Furthermore, Petitioner testified that he was behind

12
on his property taxes and had not paid them since 2008. (TR at 79). Finally, the

Florida Bar’s Staff Investigator testified that three (3) final judgments recorded

against Petitioner had not yet been satisfied. (TR at 118-122, 124).

Petitioner’s argument that the Referee failed to assign the appropriate weight

to his caretaking responsibilities, and consider their impact on his personal

finances, ignores the totality of Petitioner’s financial irresponsibility. While the

Referee did find that the aid Petitioner had given to his mother was commendable,

his conclusion that “it is no more and no less than what is required of any child

who has reaped the benefits of love and attention from his parent” (ROR at 8), is

supported by the Rules and existing case law.

Rule 3-7.10(f) specifically states that “[m]erely showing that an individual is

now living as and doing those things that should be done throughout life, although

necessary to prove rehabilitation, does not prove that the individual has undertaken

a useful and constructive place in society.” Although the Referee found evidence

of positive action by virtue of Petitioner’s care of his mother (and his community

service), such acts alone cannot establish Petitioner’s rehabilitation in light of his

glaring financial irresponsibility.

While Petitioner compares his case to that of The Florida Bar re Grusmark,

662 So.2d 1235 (Fla. 1995), such emphasis is misplaced. In Grusmark, the referee

found that the petitioner no longer lived above his means and, in fact, had lessened

13
his financial burdens and begun to sort out his finances prior to the reinstatement

hearing by filing for bankruptcy. Id. at 1237. In the instant case, Petitioner has

not lessened his financial burdens—if anything they have increased—and unlike

Grusmark, Petitioner has not taken any substantial steps to lessen or alleviate those

burdens. The considerable child support arrears, the past due student loan

obligations and the significant back property taxes defy any notion of an orderly

financial picture.

Accordingly, Petitioner’s case is more analogous to The Florida Bar re Wolf,

21 So.3d 15 (Fla. 2009). In Wolf, the petitioner was denied reinstatement, in part,

because his actions demonstrated continued financial irresponsibility. 8 In

particular, the referee found that the petitioner’s financial situation was unstable

and that he owed significant amounts to the Internal Revenue Service. Id. at 16.

Although the referee recommended reinstatement, the Court disapproved, noting

that the petitioner’s financial irresponsibility constituted a disqualifying factor. Id.

at 18. Significantly, the Court noted that the petitioner’s financial irresponsibility

“weighs especially heavy here because this same weakness caused or contributed

to the conduct that led to Wolf’s suspension in the first place.” Id. Petitioner’s

present financial circumstances are equally troubling given that his initial

8
In Wolf the petitioner’s reinstatement was also denied because there was
competent evidence that the petitioner had engaged in the unauthorized practice of
law. Wolf, 21 So.3d at 17.
14
suspension was predicated upon his failure to pay child support.

Consequently, the Referee’s finding of financial irresponsibility as an

instance of disqualifying conduct is well supported by competent evidence and has

a reasonable basis in existing case law.

B. Neglect of Professional Obligations

Petitioner’s own testimony, as well as evidence submitted by the Bar,

establishes neglect of his professional obligations. As of the final hearing,

Petitioner had not yet paid his 2010 Bar membership dues which became

delinquent on October 1, 2010. (A7; TR at 79). Petitioner had also failed to

remove his Continuing Legal Education Requirement delinquency which became

effective on September 30, 2009. (A8; TR at 80).9 Finally, Petitioner failed to

submit sworn quarterly employment reports, in compliance with Rule 3-6.1(e) of

the Rules Regulating The Florida Bar, at the time they were due. (A9).

Although Petitioner argues that the record fails to support the Referee’s

finding that he did not comply with Rule 3-6.1(e), his assertion ignores the plain

language of the Rule. Rule 3-6.1(e) (Quarterly Reports by Individual and

Employer Required) states that:


9
Petitioner’s argument that the Bar represented that if he completed his
Continuing Legal Education Requirements prior the final hearing it would preclude
a finding of disqualifying conduct mischaracterizes the record. (PIB at 15, 16).
The Bar’s correspondence specifically stated that Petitioner’s failure to complete
his requirements prior to the end of the specified reporting period may still
constitute a basis for the denial of his Petition. (A3).
15
The individual subject to this rule and employer shall submit
sworn information reports to The Florida Bar. Such reports
shall be filed quarterly, based on the calendar year, and include
statements that no aspect of the work of the individual subject
to this rule has involved the unlicensed practice of law, that the
individual subject to this rule has had no direct client contact,
that the individual subject to this rule did not receive, disburse,
or otherwise handle trust funds or property, and that the
individual subject to this rule is not being supervised by an
attorney whom the individual subject to this rule supervised
within the 3 years immediately previous to the date of the
suspension, disbarment, or disciplinary resignation. (Emphasis
added).

Petitioner first submitted correspondence purporting to comply with this

Rule on May 10, 2011, reporting employment that occurred in calendar years 2006

and 2008 through 2010 (A10). As the Report of Referee suggests, such

correspondence appears to have been an attempt to comply with Rule 3-6.1(e) after

the fact. (ROR at 9). The Rule clearly states that reports are to be provided

quarterly based on the calendar year, and as a result, Petitioner’s single, untimely

report provided in May of 2011 is not in compliance. Accordingly, the Referee’s

finding of neglect of professional obligations as an instance of disqualifying

conduct is well supported by competent and substantial evidence.

C. Candor in the Reinstatement Process

The record in this case also demonstrates that Petitioner failed to act with the

requisite candor during the reinstatement process. The Florida Bar’s Staff Auditor

testified that Petitioner failed to provide complete records, as requested, for the

16
three (3) bank accounts he was a signatory on and failed to provide copies of his

Internal Revenue Service tax returns. (TR at 150-159). Petitioner’s failure to

provide the requested financial documents precluded the Bar’s Staff Auditor from

performing an audit of the relevant accounts. (TR at 159). This, in turn, hampered

the Bar’s ability to present evidence to the referee concerning the propriety of

Petitioner’s finances which “should be considered in passing upon the petition.”

R. Regulating Fla. Bar 3-7.10(e).

Petitioner contends that by providing the Bar with the financial records he

had in his possession, he complied with the Bar’s discovery requests and acted

with the necessary candor. Petitioner further asserts that it was the Bar’s

responsibility to subpoena all remaining financial documentation, not in

Petitioner’s possession, that was relevant to the determination of his fitness to

practice law. (PIB at 12). Contrary to Petitioner’s assertions, it is not the Bar’s

burden to produce the evidence necessary to establish Petitioner’s fitness to resume

the practice of law.

Although the Bar’s initial correspondence stated that it would subpoena

documents directly from Petitioner’s financial institutions, its subsequent requests

for documents, both formal and informal, made clear that it expected Petitioner to

provide the specified bank records. During the pendency of Petitioner’s

reinstatement proceeding, the Bar sent several requests to Petitioner informing him

17
that he needed to provide the specific financial documents. (A4; TFTR at 3, 4).

Accordingly, even if Petitioner was initially confused as to who bore the burden of

producing the bank records, the Bar was more than forthcoming with regard to

Petitioner’s obligations under Rule 3-7.10. (A4; THTR at 3, 4).

Contrary to Petitioner’s assertion, the Referee’s findings during the hearing

on the Bar’s motion to continue and his Report of Referee are not inconsistent.

Although the Referee stated at the hearing that Petitioner’s IOTA account records

“as we stand right now are a non-issue” (THTR at 34), this was a ruling on a pre-

trial discovery matter and not a final conclusion based on the totality of the

evidence submitted at the final hearing. After the benefit of reviewing all the

evidence, including Petitioner’s testimony, the Referee found that Petitioner had

failed to produce complete copies of not just his IOTA account records, but

complete records relating to the two (2) other accounts Petitioner was a signatory

on. (ROR at 8). Moreover, the Bar’s Staff Auditor testified that even those

records that were produced were incomplete and lacked necessary information.

(TR at 152-159). This evidence thoroughly supports the Referee’s finding that

Petitioner failed to act with the requisite candor in the reinstatement process.

18
II. PETITIONER WAS NOT PREJUDICED BY THE DELAY IN THE
SUBMISSION OF THE REPORT OF REFEREE WHICH CONTAINS
FINDINGS CONSISTENT WITH THE EVIDENCE.
(Responding to Point III of Respondent’s Initial Brief.)

Petitioner urges this Court to disapprove the Report of Referee because it

was four (4) months late and is factually inconsistent with the record evidence.

(PIB at 18-20). Given existing case law, and the substantial evidence supporting

the Referee’s findings and recommendation, Petitioner’s argument is without

merit.

First, Petitioner’s argument incorrectly assumes that the delay in the

issuance of the Report of Referee is per se unreasonable. This Court has

previously found that a report of referee, filed less than six months after the final

hearing, is timely. The Florida Bar v. Murphy, 614 So.2d 1090 (Fla. 1993). Even

in an instance of admittedly excessive delay (almost two years), this Court declined

to dismiss a complaint and instead approved the referee’s recommended sanction.

The Florida Bar v. Guard, 453 So.2d 392 (Fla. 1984). Although the instant Report

of Referee was docketed nearly seven (7) months after the final hearing, and nearly

four (4) months after its initial due date, such delay is not excessive or

unreasonable, and it should not serve to deprive the Report of its presumptive

correctness.

Second, even assuming that such delay was excessive or unreasonable,

19
Petitioner has failed to show that the delay has caused any discernible prejudice.

“A referee's delay in issuing his or her report is not a basis for rejecting the report

absent a demonstration of discernible prejudice.” The Florida Bar v. Rubin, 709

So.2d 1361, 1363 (Fla. 1998). This Court has previously found that a report of

referee, issued fourteen (14) months after the final hearing, was not invalid absent

the demonstration of discernible prejudice by the respondent. The Florida Bar v.

Lehrman, 485 So.2d 1276 (Fla. 1986). However, Petitioner has failed to point to

any evidence in the record that would support this threshold showing.

Finally, Petitioner’s assertion that the Report of Referee should be

disapproved because it is factually baseless and inconsistent ignores the abundant

record evidence. As discussed above, the Referee’s conclusion that Petitioner’s

failure to produce the requested bank records constituted a lack of candor in the

reinstatement process was based upon the evidence adduced at the final hearing.

What Petitioner perceives as inconsistencies between the Referee’s statements

during the hearing on the motion to continue and his Report are simply the

Referee’s ultimate findings based on the evidence submitted.

A petitioner seeking reinstatement bears the heavy burden of establishing

rehabilitation. The Florida Bar re Jahn, 559 So.2d 1089, 1090 (Fla. 1990); The

Florida Bar re Janssen, 643 So.2d 1065, 1066 (Fla. 1994). It was the Petitioner’s

burden to provide those financial documents necessary to establish his fitness to

20
resume the practice of law. Petitioner’s failure to do so is simply one example

among many of his inability to carry this ultimate burden. His bald assertion that

the Referee’s cumulative errors deprived him of a fair and impartial hearing

ignores the overwhelming record evidence supporting a denial of his Petition.

21
CONCLUSION

Based upon the foregoing reasons and citations of authority, The Florida Bar

respectfully requests that this Court approve the original Report of Referee denying

Petitioner’s reinstatement to the practice of law.

_______________________________
THOMAS ALLEN KROEGER
Bar Counsel
Florida Bar No. 19303
The Florida Bar
444 Brickell Avenue, Suite M-100
Miami, Florida 33131
(305) 377-4445

KENNETH LAWRENCE MARVIN


Staff Counsel
Florida Bar No. 0200999
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5600

JOHN F. HARKNESS, JR.


Executive Director
Florida Bar No. 0123390
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
Tel: (850) 56l-5600

22
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven copies of The Florida

Bar’s Answer Brief on Appeal were sent via Federal Express Mail US Airbill No.

(809685807814) to Thomas D. Hall, Clerk, Supreme Court Building, Supreme

Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399; and a true

and correct copy was sent via certified mail return receipt requested (7010 0780

0002 0066 7220) to Cornelius Shiver, Jr., Petitioner, at 3095 Plaza Street, Miami,

Florida 33133; and U.S. mail to Kenneth L. Marvin, Staff Counsel, The Florida

Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399; on this ___ day of

______________, 2012.

______________________________
THOMAS ALLEN KROEGER
Bar Counsel

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

I HEREBY CERTIFY that the Answer Brief of The Florida Bar is submitted

in 14 point proportionately spaced Times New Roman font in Microsoft Word

format.

______________________________
THOMAS ALLEN KROEGER
Bar Counsel

23