IN THE SUPREME COURT OF FLORIDA

(Before a Referee) s
c 013
THE FLORIDA BAR, Supreme Court Case a
No. SCl2-393
Complainant,
The Florida Bar File
v. No. 2010-71,265 (11E)
ROBERT JOSEPH RATINER,
Respondent.

FINAL REPORT OF REFEREE

I. SUMMARY OF PROCEEDINGS:

Having been duly appointed as a Referee to conduct disciplinary

proceedings as provided for by rule 3-7.6 of the Rules Regulating the Florida Bar,

a Final Hearing was held on April 4, 2013, April 5, 2013 and April 10, 2013. All
of the pleadings, notices, motions, orders and exhibits are forwarded with this

report and the foregoing constitute the record in this case.

The following attorneys appeared as counsel for the parties:

On behalf of The Florida Bar: Tonya L. Avery

The Florida Bar
444 Brickell Avenue
Suite M-100
Miami, Florida 33131
Tel: (305) 377-4445

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On behalf of the Respondent Kevin P. Tynan
Richardson and Tynan, P.L.C.
8142 North University Drive
Tamarac, Florida 33321
Tel: (954) 721-7300

FINDINGS OF FACT

A. Jurisdictional Statement. Mr. Ratiner is and was, at all times material herein, a

member of The Florida Bar subject to the jurisdiction and disciplinary rules of the

Supreme Court of Florida.

B. Finding of Fact

I have made my findings of fact in this matter applying the "clear and

convincing evidence" burden of proof. "'Clear and convincing evidence' is

evidence that is precise, explicit, lacking in confusion, and of such weight that it

produces a firm belief or conviction, without hesitation, about the matter in issue."

Fla. Std. Jury Instr. (Civ.)405.4.

My findings of fact are based on the tangible exhibits entered into evidence

as well as the testimony of the witnesses. In evaluating the testimony of the

witnesses, I considered the demeanor of the witnesses, including how they

answered the attorneys' questions.

Summary

Mr. Ratiner and Bonnie Daboll (hereinafter "Daboll") were opposing

counsel in a civil lawsuit entitled Frank Fuzzell, et al vs. E.I. DuPont, etc., et. al.

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Mr. Ratiner represented several plaintiffs in other cases against E.I. DuPont De

Nemours and Company (hereinafter "DuPont"), in addition to representing the

plaintiff in the Fuzzell case. Daboll is an attorney with the law firm of Shook,

Hardy, and Bacon L.L.P. in Tampa, Florida and her law firm represented DuPont.

Mr. Ratiner and Daboll participated in a four day document review session

that occurred in Wilmington, Delaware, beginning on October 13, 2009 and going

through October 16, 2009. On the first day of the document review session, Mr.

Ratiner referred to Daboll's co-counsel, Lea Souza-Rasile, also present that day, as

a "dominatrix" and stated "you must enjoy dominating people." In a voice loud

enough for everyone in the room to hear him, Mr. Ratiner made this comment to

his expert, Dr. Fred Haupt, who was also present at the document review session.

Mr. Ratiner's comments had no substantial purpose other than to embarrass Ms.

Souza-Rasile. Mr. Ratiner's comments, whether knowingly or with callous

indifference, did disparage, humiliate, and/or discriminate against another lawyer,

Ms. Souza-Rasile.

On the second day of the document review session, Daboll hired a

videographer to record the remaining sessions due to Mr. Ratiner's behavior. Mr.

Ratiner himself was the first one to mention the possibility of video recording the

document production. He can be seen on the videos in evidence holding a small

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handheld video camera. Mr. Ratiner vehemently objected to the placement of the

professional videographer's camera during this document review.

On October 14, 2009, while reviewing a box of documents, Mr. Ratiner

stated that the documents contained therein were inconsistent with the index

provided to him beforehand. Thereafter, Daboll removed the hard copy of her

index from her notebook, walked over to Mr. Ratiner's table, and showed Mr.

Ratiner one page of her index, keeping the remaining index consisting of several

pages in her left hand by her side. Daboll kept her right hand on the document

while Mr. Ratiner viewed it. Mr. Ratiner maintained that his index was different

from the index that Daboll was holding in her hand and he demanded a copy of her

index, which Daboll refused.

Thereafter, Mr. Ratiner attempted to grab the document from underneath

Daboll's right hand, and then immediately reached across her body and grabbed

the papers which she had in her left hand. As Daboll attempted to hold on to the

documents, she stated, "Don't grab [sic] ever again." Mr. Ratiner continued to

attempt to forcibly take the papers from Daboll, causing a security guard (who was

also present to assist in safeguarding the documents) to come across the room and

intervene.

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 Detailed Findings of Fact, Discussion, and Analysis:

A. Dominatrix Comment

During the first day of the document review, Ms. Souza-Rasile informed Mr.

Ratiner as to how the document review session would proceed. Mr. Ratiner and

his consultant were informed that they could each review one box at a time. Mr.

Ratiner testified that he has known Ms. Souza-Rasile for several years, and that she

is a "bigwig" at Shook, Hardy and Bacon.

I find that at some point during the document review, Mr. Ratiner called Ms.

Souza-Rasile a "dominatrix" and stated "you must enjoy dominating people"

Thereafter, Mr. Ratiner and his expert consultant, Dr. Haupt joked about this

remark.

Florida Bar exhibits 1 through 4 in evidence all support the fact that Mr.

Ratiner made these statements loudly to Ms. Souza-Rasile, and joked about them

with Dr. Haupt.

I find extremely credible the testimony of the security guard, Selwyn

Downes. Mr. Downes no longer works for Wackenhut. He no longer lives in

Delaware. He now works with his wife who provides service as a CPA out of

Brooklyn, New York. No evidence was presented as to any bias or interest Mr.

Downes may have in testifying favorably to The Florida Bar or any of the parties

aligned in interest with it. Moreover, Mr. Downes's demeanor while he testified

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was worthy of belief. He was, among other things, thoughtful and careful in the

way he answered questions from both sides and, he paused where appropriate as he

tried to recount the details about which he was being asked.

Mr. Downes clearly and unequivocally confirmed that he heard Mr. Ratiner

call Ms. Souza-Rasile a dominatrix, and that he later joked about it with Dr. Haupt.

Mr. Downes credibly and understandably explained why he did not mention that

comment in his Incident Report, which is Bar exhibit 5. He also reaffirmed the

testimony set forth in his earlier affidavit on the matter.

Equally compelling as evidence in support of this "dominatrix" incident is

Mr. Ratiner himself. First, with respect to whether the comment was loud enough

for everyone in the room to hear it, I find - based on my observations at the trial of

this matter - that even when Mr. Ratiner is attempting to speak softly to his

attorney, he speaks in a loud tone of voice. At more than one point during this

trial, I had to ask Mr. Ratiner to please lower his voice because I could hear him

talking in the background while something else was taking place. Moreover, the

video recordings of this document review (Bar exhibit 10 and Respondent's exhibit

6) abundantly support the volume and tone with which Mr. Ratiner regularly

communicates.

Second, Mr. Ratiner's testimony at the hearing on this point was very

surprising. While he denied using the word "dominatrix," his denial - when

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considered along with the other evidence in the case - is not credible. Mr. Ratiner

testified in part as follows:

A. I did not use the word "dominatrix" to Ms. Rasile. I - what was
explained, I think, I heard here that - what was - I heard you're a
dominatrix and you like to control people.

Do I believe that, you know, that might be true, yeah.

***
Q. There's also an allegation that you and Mr. Haupt or -- Dr. Haupt,
excuse me, actuallyjoked about the term "dominatrix?"

A. Again, the word - I never heard the word "dominatrix". I did not
say the word "dominatrix".

When I first saw it in the complaint, my first reaction was,

so what? You know, even if someone uses words -- if I can say that
you like to dominate people, you're a dominator; is that okay? But I
can't call a female a dominator, because that is not the appropriate
connotation, it's -- nobody here has -- I have not seen even a
suggestion that this was made in some sexually offensive or
demeaning or even intended to be anything other than the distinction
between a masculine dominator and a feminine dominator.

But under any circumstances if they heard the word

"dominatrix" it did not come from me. And I did not discuss with
Fred Haupt or joke with Fred Haupt at that point about anything. I
was-it was, what, 10 o'clock in the morning. I just got to Delaware.
I'm supposed to be in one place. I got shoved over to another place.
I'm just trying to get my document review started. I've got this
sniveling, sick thing sitting in the room that doesn't seem to have
any purpose and all I want to do is start looking at documents, that I
have been waiting 18 years for. I would love to describe some of these
documents that should have been in that box or in the other box.

(Hr'g Tr. of April 5, 2013 at 450-52)(emphasis added).

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 The "sniveling, sick thing" to whom Mr. Ratiner was referring in his

testimony before me is Georgeann Parag, a paralegal who worked directly for

DuPont and who was present to assist with the document review. Mr. Ratiner's

description of her - even in his testimony in court and in my presence - is

probative and indicative of the disparaging way he refers to others in a professional

setting.

In the pertinent testimony which I quoted above, Mr. Ratiner said that he

believed that Ms. Souza-Rasile was a dominatrix and liked to control people, but

he indicated that he did not understand why that had a negative connotation. Mr.

Ratiner's explanation is not worthy of belief. In the standard jury instructions in

civil cases (601.1), we tell juries to use reason and common sense in weighing the

evidence and reaching conclusions. Likewise, in criminal cases we tell juries (3.9)

to use their common sense in deciding which is the best evidence and which

evidence should not be relied upon in reaching a verdict. As the finder of fact in

this proceeding, I have also used my common sense.

The dictionary defines "dominatrix" as follows: "a woman who physically

and psychologically dominates and abuses her partner in sadomasochistic sex;

broadly: a dominating women." Merriam-Webster's Collegiate Dictionary 344

(10th ed. 1998). I ran a search in Westlaw for the word "dominatrix" in the "All

States" and "All Federal" databases and, of the 32 cases reported where the word

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appears, in not one was the word used in a non-sexual manner. In no case was the

word ever used to "simply" refer to the feminine version of a dominator, as Mr.

Ratiner suggests. In weighing the evidence with reason and common sense, it is

not believable that a male attorney would refer to a female attorney using that word

simply to describe her as someone who dominates others.

Indeed, immediately below the definition of "dominatrix" are the definitions

of the words "domineer" and "domineering":

domineer: to exercise arbitrary or overbearing control ~ vt: to

tyrannize over

domineering: inclined to domineer

See id. Plainly, there are many other words available in the English

language - without the sexual connotation - to communicate the idea of a

person who dominates or controls others. Based on my common sense and

all of the testimony and evidence presented, I find that Mr. Ratiner loudly

called Ms. Souza-Rasile a dominatrix, joked about it, and meant it in a

disparaging, belittling manner.

From the evidence presented, there are other examples of Mr.

Ratiner's brand of humor. Bar Exhibit 8 is a transcript of the document

review. October 13, 2009 was the first day of the review, before a

videographer was present. Before the court reporter was present, Mr. Ratiner

made the dominatrix comment. As set forth in Bar Exhibit 8, the court
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reporter begins her transcript at approximately 11:50 AM. At page 24,

Daboll was asking Mr. Ratiner whether he was planning on taking a break

for lunch. The following exchange occurs:

MS. DABOLL: Just wondering: Were you guys

planning on taking a break at all for lunch today?

MR. RATINER: No, ma'am.

MS. DABOLL: Okay.

MR. RATINER: That's why I get fat. I'm like a bear. I

store it up, so I can go right through.

MS. DABOLL: Okay.

MR. RATINER: But this isn't the kind of weather we

usually - hibernate - wait for cold.

At another point, Mr. Ratiner spontaneously comments to Daboll as follows:

"So, Bonnie, what are you doing over there? Playing games? That's what I usually

do when I am sitting over there quiet and nobody can see my computer." (Bar Ex.

8 at 44.) Later, Mr. Ratiner responds to Daboll's observations that he was taking

pictures of the boxes as follows:

MR. RATINER: Actually, there is a three-ring circus in there

that we're taking a picture of. Yes. We're taking a picture of the Bates
labels on the tapes that are there, so that, hopefully, we can make out
the Bates labels specifically, but certainly we can make out the tapes
themselves.
I'm going to read in the Bates labels, so if you want to read
over my shoulder while I read them in, you're welcome to do that.

MS. DABOLL: I will.

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 MR. RATINER: But, whoa, we are going to find out that
DuPont's missing a whole bunch of the tapes, like the White House,
back in Tricky Dick's years.
Any response to that one, Ms. Daboll?

MS. DABOLL: I do not think it deserves a response, Mr.

Ratiner.

At other points on the video of the document review, Mr. Ratiner can be

heard sarcastically referring to the "box fairy," in reference to his accusations that

Daboll was magically making boxes of evidence appear. At another point, Dr.

Haupt can be heard sarcastically using the line from the film Casablanca ("I'm

shocked, shocked to find that gambling is going on in here . . ."), reflecting his take

on his view of DuPont's discovery conduct.

I find Mr. Ratiner's comments disconcerting and highly offensive. Mr.

Ratiner simply fails to recognize that not only were his comments inappropriate

and unprofessional, but they were also disrespectful, not only to Ms. Souza-Rasile,

but to women in general. Mr. Ratiner compounded the inappropriateness of his

statement as evidenced by the fact that after he made this remark, he then joked

about it with his expert consultant, Dr. Haupt.

I also also take a moment to address Mr. Ratiner's paid expert consultant,

Dr. Haupt. Although Dr. Haupt is not subject to The Rules Regulating The Florida

Bar, his conduct, over the course of the document review did not help matters in

this case. Mr. Ratiner and Dr. Haupt have made no secret of the fact that they both
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have a long history of animosity with Dupont. During the document review, Dr.

Haupt made an inappropriate comment to Mr. Ratiner about one of Dupont's

attorneys, Daboll, when he stated "Elvis has left the building," a remark he made

after Daboll left the document review session, as well as other inappropriate

remarks that this Referee noted from the transcript of the document review.

B. Video Camera and "Taking" Incident

On the second day of the document review, Daboll's law firm hired a

videographer in hopes that having a video camera present in the room would

curtail Mr. Ratiner's unprofessional and abusive behavior. Mr. Ratiner can be seen

on the videotape vehemently objecting to the positioning of the video camera.

Even though Daboll had the videographer reposition the video camera several

times to appease Mr. Ratiner, no matter where the videographer repositioned the

camera, Mr. Ratiner was not satisfied. While I certainly recognize Mr. Ratiner's

right to make an objection, rather than making his objection and moving on, Mr.

Ratiner spent hours ranting and raising his voice regarding the positioning of the

video camera. This was, at a minimum, entirely unprofessional. At one point, Mr.

Ratiner even argued that the videographer was trying to capture his work product

by spying on his notebook and computer. This claim by Mr. Ratiner was totally

unreasonable and lacked any merit. Moreover, if Mr. Ratiner was so adamant

about not having a video camera present at this document review session, (even

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though Daboll testified that Mr. Ratiner himself had mentioned such a possibility)

then he should have discontinued the document review, and sought the presiding

Judge's guidance, rather than trying to intimidate and bully the parties.

The most serious incident evidencing Mr. Ratiner's misconduct is his

forceful taking or grabbing of Daboll's documents without her consent. At the

time of this incident, Daboll was attempting to assist Mr. Ratiner who complained

to her that his index was different from the one that was provided to him

beforehand. In order to show Mr. Ratiner he was mistaken, Daboll walked over to

Mr. Ratiner's side of the table and showed him a copy of her index which she held

in her right hand. At the same time, Daboll also held several other documents

underneath her left arm. Mr. Ratiner became belligerent when he perceived that

the document Daboll was holding in her right hand was somehow different from

the document that was previously provided to him. At that point, Mr. Ratiner

demanded that Daboll provide to him a copy of all the documents she was holding.

If Mr. Ratiner's conduct was not already bad enough, he certainly crossed the line

when he tried to forcibly remove the documents from Daboll's right hand, as well

as the documents from underneath her left arm, causing the security guard,

Downes, to intervene. Thereafter, Mr. Ratiner relented and Daboll returned to her

side of the table.

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 Again, I find the testimony of the security guard extremely credible. The

security guard was the one neutral witness to this incident. It is worthy of note that

when Mr. Ratiner's behavior turned physical with Daboll, it became necessary for

the security guard to intervene before Mr. Ratiner would even release the

documents back to Daboll. This is another glaring example of Mr. Ratiner's

abusive, unprofessional, and bullying behavior throughout this entire document

review. My findings in this regard are further supported by The Florida Bar

Exhibit 5, the Wackenhut Security Incident Report, prepared by the security guard

Downes and which recounts Mr. Ratiner's altercation with Daboll. As a result of

Mr. Ratiner's conduct and the altercation, the security guard requested that

Wackenhunt provide additional security at the document review session.

As set forth in Bar Exhibit 7, the trial judge in the Fuzzell case noted that

Mr. Ratiner "has a self-control problem heightened by his extreme distrust of

DuPont's attorneys." Nonetheless, even if Mr. Ratiner had a good faith basis to

believe that Dupont attorneys were trying to obstruct discovery from him, there is

no justification for his unprofessional, abusive, bullying, and intimidating

behavior. Rather than taking the high road and exercising any degree of decorum

and professionalism, Mr. Ratiner became agressive, out of control, intimidating,

abusive, and unprofessional towards opposing counsel. I also find it peculiar and

troubling that Mr. Ratiner never raised with the trial judge in that case the alleged

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fraudulent index that was so important to Mr. Ratiner that he was attempting to

take it from Daboll.

Mr. Ratiner's version of the event is that Daboll simply handed him her page

of the index and then tried to grab it back from him. This is not credible. Among

other things, Mr. Ratiner himself testified that Daboll earlier told him that he was

not even allowed to touch the boxes containing the discovery Dupont was

producing. (Hr'g Tr. of April 5, 2013 at 446). If, according to Mr. Ratiner

himself, Daboll's position was that he was not even allowed to touch the boxes

containing documents, then it certainly defies credulity to believe that Daboll

suddenly had a change of heart and simply handed over her own personal copy of

the discovery index.

Mr. Ratiner's expert consultant, Dr. Haupt, testified that Dupont attorneys

would not voluntarily turn over discovery causing Mr. Ratiner to have to fight for

it. Mr. Ratiner apparently took this notion literally as evidenced by his actions and

his testimony. Mr. Ratiner testified that he did not believe his conduct to be

contrary to justice or unlawful because he believed that his letting go of the papers

Daboll was holding would have been contrary to his client's interest. This Referee

f'mds Mr. Ratiner's notion that he can and should do whatever necessary to protect

his client's interest, even if it means physically taking without consent the property

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of another member of The Florida Bar, is irrational, unprofessional, and

inappropriate.

Perhaps most disturbing is that Mr. Ratiner seems to have no understanding

whatsoever that this conduct is not acceptable. When questioned by his own

attorney regarding this particular incident, Mr. Ratiner testified that he should have

let the paper Ms. Daboll was holding rip, that his conduct was devoted to his

client's cause, and that after watching the video tape and reading all the transcripts,

it was his conclusion that he did himself and his client the best service he possibly

could.

While I certainly recognize and appreciate an attorney's obligation to

advocate zealously on behalf of a client in our adversarial system, that does not

include crossing the line of common decency, civility, and respect as Mr. Ratiner

has done in the instant case.

C. Order on Various Motions

Again, with regard to Bar Exhibit 7, this Referee takes judicial notice of the

court order from Lake County where the DuPont attorneys filed a Motion for

Order to Show Cause and Imposition of Sanctions Against the Mr. Ratiner as a

result of the incidents which form the basis of the Bar's case. This Referee

recognizes that the court in that case found Mr. Ratiner's behavior to be

unprofessional, but did not warrant a rule to show cause. The court there noted
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that an evidentiary hearing would be necessary and, apparently, no such hearing on

the rule to show cause was ever held. Again, the Lake County Court recognized

that Mr. Ratiner has a self-control problem and appointed a Special Master to

attend future depositions in Mr. Ratiner's underlying civil case against Dupont. I

find these actions by the trial court to be quite telling. Likewise, Mr. Ratiner's

self-control problems are obvious as evidenced from the video and transcripts of

the document review session. A picture tells a thousand words.

Conclusion

Mr. Ratiner unabashedly ignored all civility, decorum, and professionalism

by creating an atmosphere of intimidation, bullying, and abuse, as well as an

unprofessional environment, all of which served to interfere with the

administration ofjustice during this document review session.

Moreover, this Referee notes that Mr. Ratiner ignored our creed of

professionalism which states, in part, that lawyers should abstain from all rude,

disruptive, disrespectful, and abusive behavior and at all times act with dignity,

decency and courtesy. Creed of Professionalism. This Referee also recognizes

that an attorney must practice within the bounds of civility and professionalism

required of all members of The Florida Bar and abstain from all offensive

personality and advance no fact prejudicial to the honor or reputation of a party or

witness. Oath of Admission to The Florida Bar.

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II. RECOMMENDATIONS AS TO GUILT:

Based on the foregoing, this Referee finds Mr. Ratiner guilty of violating the

following Rules Regulating The Florida Bar: Rules 3-4.3(Misconduct and Minor

Misconduct. The standards of professional conduct to be observed by members of

the bar are not limited to the observance of rules and avoidance of prohibited acts,

and the enumeration herein of certain categories of misconduct as constituting

grounds for discipline shall not be deemed to be all inclusive nor shall the failure to

specify any particular act of misconduct be construed as tolerance thereof...); Rule

4-4.4(a) (Respect for Rights of Third Parties. In representing a client a lawyer

shall not use means that have no substantial purpose other than to embarrass, delay,

or burden a third person or knowingly use methods of obtaining evidence that

violate the legal rights of such a person); Rule 4-8.4(a) (Misconduct. A lawyer

shall not violate the Rules of Professional Conduct or knowingly assist or induce

another to do so through the acts of another); and

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 Rule 4-8.4(d) (Misconduct. A lawyer shall not engage in conduct

prejudicial to the administration of justice, including to knowingly, or through

callous indifference, disparage, humiliate, or discriminate against litigants, jurors,

witnesses, court personnel, or other lawyers on any basis, including but not limited

to, on account of race, ethnicity, gender, religion, national origin, disability, marital

status, sexual orientation, age, socioeconomic status, employment or physical

characteristic) of the Rules Regulating The Florida Bar.

III. RECOMMENDATIONS AS TO DISCIPLINE TO BE IMPOSED:

I held an evidentiary sanctions hearing in this matter on September 6, 2013.

At that hearing, the parties presented both testimonial and documentary evidence.

They also presented legal authorities they deemed appropriate, and argument of

counsel. Based on the totality of the circumstances, I find Mr. Ratiner guilty of

misconduct justifying disciplinary measures, and that he be disciplined as follows:

Suspension from the practice of law for three years, followed by two years

of probation.

In recommending this discipline, I reviewed Florida's Standards for

Imposing Lawyer Sanctions. I specifically considered, among other things, the

factors set forth in standard 3.0: (a) the duty violated; (b) the lawyer's mental state;

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(c) the potential or actual injury caused by the lawyer's misconduct; and (d) the

existence of aggravating or mitigating factors.

I write in detail to address certain specific issues raised by Mr. Ratiner. A

recurring theme of Mr. Ratiner's defense has been his contention that his actions

have been those of an aggressive and zealous advocate for his client faced with a

formidable and cunning adversary. Those who testified on Mr. Ratiner's behalf

described him in part as what I would characterize as the person one would want

with them in the proverbial foxhole. While that may be appropriate and valuable in

a ground war in a military conflict, our justice system is not - and should never be

- like that.

I write to elaborate on the nature of the duty violated by Mr. Ratiner, the

actual injury caused by his misconduct, and to address his argument that his

misconduct in 2009 should not be evaluated by professionalism and civility

standards in 2013. I believe this latter issue is a reference to the Florida Supreme

Court's recent opinion in In re Code for Resolving Professionalism Complaints,

116 So. 3d 280 (Fla. 2013). In that opinion, the Court made reference to its

objective of "ensuring that the practice of law remains a high calling with lawyers

invested in not only the service of individual clients but also service to the public

good as well." See id. (emphasis added)

Page20 of29
 This is nothing new. This characterization of what lawyers should be

"invested in," is a variation on earlier admonitions that a lawyer cannot "justify

unprofessional conduct by elevating the perceived duty of zealous representation

over all other duties." Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482, 492 (Fla.

3d DCA 2000). In that case, the context was appellate advocacy, and the Third

District Court of Appeal described the lawyer's other duties: "Counsel has a

concurrent duty to the legal system and the public good to ensure appeals are

pursued in good faith and are not frivolous." See id. Plainly, a lawyer's duty to

the legal system and the public good is not limited to appeals.

In 2005, the Florida Supreme Court examined a lawyer's obligations in the

context of conceding error on appeal and the requirement that a lawyer disclose to

a tribunal all legal authority contrary to his position. See Boca Burger, Inc. v.

Forum, 912 So. 2d 561 (Fla. 2005).

Section 57.105, as well as the Florida Bar rules of professional

conduct and even the oath of admission to the Florida Bar, all warn-if
any warning were needed-that counsel must be governed by
considerations other than mere zealous advocacy for the client.

***
Too many members of the Bar practice with complete ignorance of or
disdain for the basic principle that a lawyer's duty to his calling and
to the administration of justice far outweighs-and must outweigh-
even his obligation to his client, and, surely what we suspect really
motivates many such inappropriate actions, his interest in his personal
aggrandizement.

Page 21 of 29
See id. at 571-72 (emphasis added)(internal quotations an citations omitted)

In 1999, the First District Court of Appeal examined the seemingly

"conflicting obligations" imposed on attorneys by the adversarial method of trial.

See Carnival Corp. v. Beverly, 744 So. 2d 489 (Fla. 1" DCA 1999). The court's

opinion cited to numerous legal authorities which have addressed the long-standing

principle that a lawyer has coequal duties to zealously represent his or her client, to

the judicial system, and to the public good.

Thus, an attorney has a,d_uh to refrain from advocacy that undermines

or interferes with the functioning of the judicial system. See
Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1546 (1lth
Cir.1993) (Judge Fay states: "An attorney's duty to a client can never
outweigh his or her responsibility to see that our system of justice
functions smoothly. This concept is as old as common law
lurisprudence itself."); see, e.g., rules 4-3.5(c) ("a lawyer shall not
engage in conduct intended to disrupt a tribunal"), and 4-8.4(d) (a
lawyer shall not "engage in conduct in connection with the practice of
law that is prejudicial to the administration of justice, including to
knowingly ... disparage ... witnesses ... *494 or other lawyers on any
basis...."), Rules Regulating The Florida Bar.2 When professional
judgment does not restrain a lawyer's zealous advocacy, however, the
courts must act to assure that aggressive advocacy does not frustrate
or disrupt the administration ofjudicial proceedings.

***
[A]ny notion that the duty to represent a client trumps obligations of
professionalism is, of course, indefensible as a matter of law.

***
In balancing conflicting professional obligations, the lawyer's function
includes a measure of objectivity in the implementation of legal skills,
goals, or practices.... [O]bjectivity ... refer[s] to a sense of impartiality
in evaluating competing interests. In other words, objectivity is the
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 ability to distance oneself from personal and client desires in order to
evaluate the effect of potential actions on clients, third parties, and the
legal system.

Carnival Corp. v. Beverly, 744 So. 2d 489, 493-94 n.2 (Fla. 1st DCA

1999)(emphasis added)(internal quotations and citations omitted). It is precisely

this objectivity which Mr. Ratiner lacks. In my review of the evidence and the

presentations of the parties, I see no sign that Mr. Ratiner recognizes that he has a

duty in his practice of law to the public good and to the judicial system. I see no

evidence of an ability on his part to evaluate the effect of his actions on third

parties and the legal system.

Plainly, a lawyer's duty to the public good and to the administration of

justice is not of recent vintage. I now write to address the potential or actual injury

caused by Mr. Ratiner's violations of those duties. First and foremost of course are

the direct participants in the incidents giving rise to this matter. The evidence

presented clearly and convincingly lays out insults, affronts to personal dignity,

and concerns over safety. Put simply, participants in our judicial system should not

have to put up with that.

In addition to the injuries to those directly affected by the misconduct, there

is a more far-reaching and corrosive harm caused by these acts: that is, harm to the

rule of law itself and to the judicial system. In an article excerpted from a speech

delivered by United States Supreme Court Justice Anthony M Kennedy, he

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describes the harm to the rule of law which can come from the cumulative effect of

acts of misconduct such as those committed by Mr. Ratiner in this case. See

Anthony M. Kennedy, Law and Belief, 34 - JUL Trial 22 (1998).

In the article, Justice Kennedy argues that for our Constitution and the rule

of law to be secure, attorneys have a special obligation to uphold three

indispensable principles: (1) the responsibility of the individual; (2) rationality;

and (3) civility. Of particular applicability to the matter before me are the

principles of rationality and civility.

The legal profession has a special obligation to be rational and civil

because we seek to bring order to an otherwise fractious debate.
Rationality and civility are the structure for the social order we seek to
preserve and so these precepts must always be the hallmark of this
profession.

***
[C]ivility is fundamental, not trivial. Civility is not some casual idea,
some little word to which we make a brief bow. It is not a one-hour
continuing legal education course we take before rushing off to
fractious debate. It is not a bumper sticker slogan: "Have you hugged
your adversary today?" Civility is the mark of an accomplished and
superb professional, but it is more even than this. Civility is an end in
itself.

Civility stands for the proposition that we owe respect to our fellow
citizen because of the humanity we share in common. Civility
underscores the idea of individual worth and dignity, the idea which is
the first premise of democratic theory.

Civility has deep roots in the idea of respect for the individual. We are
civil to each other because we respect one another's aspirations and
equal standing in a democratic society. We must restore civility to
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 every part of our legal system and public discourse. Civility must
always characterize the deliberations of this profession.
***
Civility does not mean a lawyer's arguments must be lacking in force,
nor does it overlook the vital role played by the lawyer or the citizen
who must protest injustice. The idea of protest is essential in our legal
tradition. Protest often contains a plea society would rather not hear,
but that does not mean it lacks civility.

***
Freedom may be born in protest, but it survives in civility.

Id. at 24-26.

I completely understand and respect the notion that Mr. Ratiner believes he

was acting on behalf of a client who was the victim of an injustice. As has been

discussed in detail, however, his desire to fight injustice cannot in any way justify

his violations of the Rules Regulating the Florida Bar and his duties to the public

good and the judicial system. Misconduct such as that committed by Mr. Ratiner in

this case contributes to a lack of respect for-and belief in-the rule of law. If such

misconduct goes unaddressed, our judicial system will not be regarded as a place

where intense disputes are resolved in a rational and civilized manner.

With regard to Mr. Ratiner's mental state, it is clear that he does not accept

or believe that he did anything wrong. Moreover, at the time of his misconduct in

this case, he was the subject of a then ongoing Bar disciplinary proceeding where

almost a year earlier the referee recommended either disbarment or a two-year

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suspension from the practice of law. Apparently, the scathing report of which Mr.

Ratiner was plainly aware had no deterrent effect on his conduct at the time of

these incidents.

IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS:

In making my disciplinary recommendation, I considered Florida's

Standards for Imposing Lawyer Sanctions and caselaw, and I find the following

aggravatingfactors:

A. Aggravation:

* 9.22(a) Prior Disciplinary Offense

* 9.22(c) A Pattern of Misconduct

* 9.22(d) Multiple Offenses

* 9.22(g) Refusal to Acknowledge the Wrongful Nature of

Conduct

* 9.22(i) Substantial Experience in the Practice of Law

B. Florida's Standards for Imposing Lawyer Sanctions:

I considered the following standards prior to recommending discipline:

* Standard 7.2: Suspension is appropriate when a lawyer

knowingly engages in conduct that is a violation of a duty owed

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 as a professional and causes injury or potential injury to a

client, the public, or the legal system.

* Standard 8.2: Suspension is appropriate when a lawyer has been

publicly reprimanded for the same or similar conduct and

engages in further similar acts of misconduct that cause injury

or potential injury to a client, the public, the legal system, or the

profession.

C. Caselaw:

In addition to that which I have already cited, I considered the following

caselaw before recommending discipline:

Fla. Bar v. Abramson, 3 So.3d 964 (Fla. 2009)

Fla. Bar v. Barrett, 897 So.2d 1269 (Fla. 2005)

Fla. Bar v. Bartholf, 775 So.2d 957 (Fla. 2000)

Fla. Bar v. Buckle, 771 So.2d 1131 (Fla. 2000)

Fla. Bar v. Cibula, 725 So.2d 360 (Fla. 1998)

Fla. Bar v. Forrester, 916 So.2d 647 (Fla. 2005)

Fla. Bar v. Germain, 957 So.2d 613 (Fla. 2007)

Fla. Bar v. Glick, 397 So.2d 1140 (Fla. 1981)

Fla. Bar v. Maier, 784 So.2d 411 (Fla. 2001)

Fla. Bar v. Martocci, 699 So.2d 1357 (Fla. 1997)

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Fla. Bar v. Martocci, 791 So.2d 1074 (Fla. 1997)

Fla. Bar v. Morgan, 938 So.2d 496 (Fla. 2006)

Fla. Bar v. Morrison, 669 So.2d 1040 (Fla. 1996)

Fla. Bar v. Norkin, 38 Fla. L. Weekly S786a (Fla. Oct. 31, 2013)

Fla. Bar v. Nunes, 734 So.2d 393 (Fla. 1999)

Fla. Bar v. Ratiner, 46 So.3d 35 (Fla. 2010)

Fla. Bar v. Sayler, 721 So.2d 1152 (Fla. 1998)

Fla. Bar v. Schreiber, 631 So.2d 1081 (Fla. 1994)

Fla. Bar v. Tobkin, 944 So.2d 219 (Fla. 2006)

Fla. Bar v. Uhrig, 666 So.2d 887 (Fla. 1996)

Fla. Bar v. Wasserman, 675 So.2d 103 (Fla. 1996)

Fla. Bar v. Wolf; 930 So.2d 574 (Fla. 2006)

V. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD:

Date of Birth: March 29, 1964. Mr. Ratiner was 45 years of age when

he committed the misconduct and violations in this case in 2009.

Date Admitted to the Bar: October 26, 1990

Prior Discipline: Public Reprimand and 60 Day Suspension, followed by a

two-year period of probation with the following special conditions: (1) undergo

mental health counseling with a licensed counselor during the term of Mr.

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Ratiner's two-year probation; (2) send letter of apology to the deponent, court

reporter, and videographer present during the deposition at issue; and (3) be

accompanied by cocounsel approved by the Bar during any depositions and other

legal proceedings were a Judge is not presiding or, alternately, ensure such

appearance or proceedings are video-recorded. The Court additionally

recommended that the video clip of the incident be shown to all law students as an

example of the way in which attorney should not conduct themselves.

VI. STATEMENT OF COSTS AND MANNER IN WHICH COST

SHOULD BE TAXED:

The Florida Bar shall be awarded its necessary and reasonable taxable costs

in these proceedings and shall submit its statement of costs, as well as a request for

payment of same.

Dated this __ day of November, 2013.

/S/
HONORABLE THOMAS JULIAN REBULL
Referee

Copies to:
Tonya L. Avery, Bar Counsel
Kenneth L. Marvin, Staff Counsel
Kevin P. Tynan, Attorney for the Respondent

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