IN THE SUPREME COURT OF FLORIDA(Before a Referee)

THE FLORIDA BAR, Supreme Court CaseNo. SC13-2104

Complainant,The Florida Bar File

v. No. 2012-11,359 (12B)

JAMES EDWARD RAWE, JR.

Respondent.

REPORT OF THE REFEREE

I. SUMMARY OF PROCEEDINGS

Pursuant to the undersigned being duly appointed as Referee to

�042conduct disciplinary proceedings herein according to Rule 3-7.6, Rules of

Discipline, the following proceedings occurred:

On November 5, 2013, the Florida Bar filed a Complaint against the

Respondent, JAMES EDWARD RAWE, JR. On January 15, 2014, the

Respondent served his Answer to the Complaint, which admitted to all of the

Complaint's allegations with the exception of allegation sixteen (16). On

February 4, 2014, the Florida Bar filed a Motion for Judgment on the

Pleadings. On March 21, 2014, the Respondent signed a Stipulation for the

entry of Judgment on the Pleadings. Based upon that stipulation, the Court

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entered an Order on March 24, 2014, finding the Respondent guilty of

violating the following Rules and Regulations of the Florida Bar:

a) Rule 3-4.3 (Misconduct and Minor Misconduct);

b) Rule 4-1.15 (Safekeeping Property);

c) Rule 4-8.4(c) (Misconduct: A lawyer shall not engage in conductinvolving dishonesty, fraud, deceit or misrepresentation);

d) Rule 5-1.1 (Trust Accounts);

e) Rule 5-1.2 (Trust Records and Procedures).

All of the aforementioned pleadings, responses thereto, exhibits received

in evidence and this Report constitute the record in this case and are

forwarded to the Supreme Court ofFlorida.

II. FINDINGS OF FACT

A. Jurisdictional Statement.

Respondent is, and at all times mentioned during this investigation

was, a member of the Florida Bar, subject to the jurisdiction and

Disciplinary Rules of the Supreme Court ofFlorida.

B. Narrative Summary of Case.

In July, 2011, Mr. Don Kyzer retained the Respondent to represent

him in a dissolution of marriage proceeding. The retainer agreement

reflected an estimate of $10,000.00 in fees to complete the Dissolution of

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Marriage action. * On July 25, 2011, the Respondent deposited a check from

Mr. Kyzer in the amount of $18,499.98 into Respondent's trust account to

pay for services, as well as expenses and costs, relating to the Dissolution of

Marriage action.2 A billing statement for services provided by the

Respondent to Mr. Kyzer in the month immediately following the payment

of the retainer (August, 2011) reflected charges of $2,025.00 against the

retainer amount. According to the Respondent's billing statement at the end

of August 2011, the balance of funds held in trust for Mr. Kyzer should have

been $16,474.98.3 During the same time period, the Respondent's trust

account balance (the account held funds for other clients and purposes other

than Mr. Kyzer) went from a balance of $90,200.98 (balance as of July 31,

2011) to $1,911.73 (balance as of August 31, 2011). The Respondent

readily admits that he did not maintain Mr. Kyzer's funds in trust, that he

misappropriated them, and failed to maintain the trust account and records in

accordance with the rules.

2 There is a dispute as to the final form of the retainer agreement actually signed by the parties.

2 In the Respondent's Summary of Facts (marked as Respondent's Submission 1), the Respondent suggeststhat the initial deposit of $18,499.98 into his trust account on behalf of Mr. Kyzer was pursuant to a CourtOrder in the Dissolution of Marriage action, and that he was directed not to distribute any part of the fundsto Mr. Kyzer without a further court order. Neither the Bar, nor the Respondent, provided a copy of anOrder entered by the Court in the Dissolution of Marriage action to corroborate his assertion. TheRespondent later clarified in his argument to the Court at the Sanctions hearing that the Order he wasreferring to was an Order effectuating an interim equitable distribution for the purpose of paying attorney'sfees.

3 See Bank of America Trust Account Statements for the account ending in xxx3155 and billing statements�042to Mr. Kyzer dated May 1, 2012, reflecting a billing time period from July 13, 2011 through April 18,

2012.

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The Florida Bar subpoenaed the Respondent's trust records for the

period of June 1, 2011 through July 31, 2012. In response to the subpoena,

the Respondent provided only four (4) bank statements for his trust account,

for the months of June, July, August and September, 2011. No other

documents that are required to be maintained by Chapter 5, Rules

Regulating Trust Accounts, were provided by the Respondent. The

Respondent readily admitted that he was not comfortable maintaining a trust

account and failed to maintain the appropriate records under the applicable

rules.

In addition to his failure to comply with the trust accounting rules, the

Respondent misrepresented to Mr. Kyzer that he had paid expert fees from

the trust account. The Respondent's billing statement dated April 30, 2012

reflects a line item dated March 1, 2012 (See Exhibit XX) indicating that the

Respondent had paid $1,125.00 to a real estate property appraiser, Mr.

Richard W. Bass. Mr. Kyzer received a demand letter dated May 23, 2012

from the expert who was retained and provided services, indicating that no

payment had been made to him by Mr. Rawe or anyone else. (See Exhibit

XX).

The Respondent continued to represent Mr. Kyzer through until the

Final Judgment ofDissolution ofMarriage was entered on May 12, 2012.

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C. Evidence and Testimony Presented at Sanctions Hearing onFriday, May 2, 2014.

The Florida Bar presented testimony from Mr. Donald Kyzer. Mr.

Kyzer testified that the Respondent's misrepresentations to him regarding

the status of his trust account balance over a ten (10) month period (July,

2011- May, 2012) completely eroded his confidence in the legal profession.

Rather than acknowledging the damage caused by his violation of the trust

account rules, the Respondent countered Mr. Kyzer's testimony by advising

the Referee that Mr. Kyzer was the most litigious client that he had ever

represented. Mr. Kyzer urged the referee to impose disbarment as a

sanction, to insure that no one else is victimized by the Respondent's

actions. The Respondent's attempted attack on the character of his client had

the opposite effect of any intended goal. Mr. Kyzer has been an active and

involved participant since the inception of this proceeding and was credible

in his recitation of the attorney-client relationship.

The Respondent testified and submitted a summary of facts regarding

the background and history of his representation of Mr. Kyzer, together with

Respondent's personal history.

The Respondent testified that due to emotional and family stressors

dating back to 2010, he essentially "dropped out of society" in January,

2011, and stopped answering phone calls or opening mail. It is noteworthy

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that five months after he purportedly dropped out of society, he was retained

by Mr. Kyzer (May, 2011) and was able to deposit $18,499.98 of Mr.

Kyzer's money into his trust account. As recently as January, 2014, the

Respondent was actively representing a criminal defendant on a second-

degree murder charge.

The Respondent requests that this Court imposes a probationary

sanction and he suggests that counseling for his depression should be a

condition of probation. It is noteworthy that in his Answer to the Complaint

filed on January 16, 2014, the Respondent affirmatively addressed his failure

to timely respond to the Complaint by stating:

"due to certain issues that Respondent iscurrently scheduled to address throughFlorida Lawyer's Assistance, Inc. TheRespondent apologizes for his failure torespond and is working towards filingresponses in all pending matters with theFlorida Bar as well as cooperating withFLA, Inc. (Emphasis added).

Despite these representations to the Florida Bar and the referee, the

Respondent had not scheduled anything with Florida Lawyer's Assistance,

Inc. ("FLA"), nor did he cooperate with FLA until three months after the

date of filing, when he was evaluated by FLA on April 21, 2014. (See

Respondent's Exhibit #2). According to the Respondent, this evaluation was

the first time that he had sought mental health assistance.

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III. RECOMMENDATIONS AS TO GUILT.

The Referee has already entered an Order fmding Respondent Guilty

ofviolating the following Rules Regulating the Florida Bar:

a) Rule 3-4.3 (Misconduct and Minor Misconduct);

b) Rule 4-1.15 (Safekeeping Property);

c) Rule 4-8.4(c) (Misconduct: A lawyer shall not engage in conductinvolving dishonesty, fraud, deceit or misrepresentation);

d) Rule 5-1.1 (Trust Accounts);

e) Rule 5-1.2 (Trust Records and Procedures).

IV. CASE LAW

In addition to considering the following Florida Standards for

Imposing Lawyer Sanctions,

I considered the following case law prior to recommending

discipline:

a) Florida Bar v. Mirk, 64 So.3d 1180 (Fla. 2011).

b) Florida Bar v. Valentine-Miller, 974 So.2d 333 (Fla. 2008).

c) Florida Bar v. Spear, 887 So.2d 1242 (Fla. 2004).

d) Florida Bar v. Benchimol, 681 So.2d 663 (Fla. 1996).

V. STANDARDS FOR IMPOSING LAWYER SANCTIONS

I considered the following Standards prior to recommending

discipline:

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Standard 3.0: Factors.

Standard 3.0 directs this Court to consider four general factors in

evaluating an attorney's misconduct: "(1) the duty violated; (2) the lawyer's

mental state; (3) the potential or actual injury caused by the lawyer's

misconduct; and (4) the existence of aggravating or mitigating factors."

1) DUTY VIOLATED: In this case, the duty violated was that of the

Respondent as a fiduciary to the client's funds held in trust. Respondent

wholly ignored the accounting records and procedures set forth in Rule 5-

1.2 of the Rules Regulating the Florida Bar, relating to Trust Accounts.

The Respondent admitted that he misappropriated the funds held in his

trust account on behalf of Mr. Kyzer.

2) LAWYER'S MENTAL STATE: The Respondent testified that he

"dropped out of society" in 2011, due to family, emotional and financial

stressors. At no time, prior to the eve of the sanctions hearing, did the

Respondent seek treatment for depression or his use of alcohol, which he

testified that he would use periodically to "self-medicate." No evidence

or testimony was presented that would corroborate a diagnosis of

depression or mental illness at the time Respondent misappropriated the

trust funds for his own use.

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3) THE POTENTIAL OR ACTUAL INJURY CAUSED BY THE

LAWYERS MISCONDUCT: Over the course of ten (10) months, the

Respondent failed to disclose to Mr. Kyzer that monies purportedly held

in trust had been misappropriated. Billing entries after the

misappropriation in August, 2011 continued to misrepresent that Mr.

Kyzer's monies were in a secure trust account when they were not. The

actual restitution or monetary damage sustained by Mr. Kyzer as a result

of the Respondent's actions is $4,848.98, as the Respondent continued to

provide legal work for Mr. Kyzer after the misappropriation of the trust

funds in August, 2011. At the sanctions hearing, Mr. Kyzer testified that

his preference was that the Respondent be disbarred, rather than pursuing

restitution, as Mr. Kyzer believed it was unlikely that the Respondent

would ever pay the amount owed to him.

The Respondent testified that he had attempted several times to

deliver a cashier's check in the amount of $1,273.00 to Mr. Kyzer,

representing the remaining balance of the trust account, after being paid

for services provided. The Respondent testified that he ultimately did

pay the cost monies associated with the expert fee of Mr. Bass, in the

amount of $1,125.00; however, he provided no proof that the payment

had actually been made and received by Mr. Bass.

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Standard 4.1:

Standard 4.11:

Standard 4.61:

Standard 5.1:

Standard 7.0:

Standard 7.1:

Failure to preserve the Client's property.

FINDING: By misappropriating the Mr. Kyzer's funds,

the Respondentfailed to preserve his client's property.

Disbarment based upon conversion of client property.

FINDING: By misappropriating Mr. Kyzer'sfunds, the

Respondent converted samefor his own use.

Disbarment based upon intentional deception.

FINDING: By continuing to bill attorney's time entries

against trust monies that were no longer held in the

Respondent's trust account and representing on billing

statements that expertfees were paid when they were

not, the Respondent intentionally deceived Mr. Kyzer

throughout the course ofhis representation.

Failure to Maintain Personal Integrity.

FINDING: In addition to the deception reflected on his

billing statements, the Respondent misled the Florida Bar

and this Court since January, 2014, when he represented

that he was cooperating with Florida Lawyer's

Assistance, when he was not.

Violation of other duties owed as a professional.

Disbarment based upon intentional conduct that violates

a duty as a professional.

FINDING: By misappropriating the trust monies held on

behalf of Mr. Kyzer, the Respondent benefitted himself

and caused serious, or potentially serious injury to his

client, Mr. Kyzer, the public and the legal system.

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VI. AGGRAVATING AND MITIGATING FACTORS

I considered the following aggravating and mitigating factors prior to

recommending discipline:

Standard 9.22 lists a total of eleven aggravating factors, which is not

meant to be an exhaustive list of all factors a court could consider in

evaluating misconduct. The Referee finds that of the eleven aggravating

factors, FOUR were supported by substantial evidence in this matter:

(b) dishonest or selfish motive;

(c) a pattern ofmisconduct;

(e) bad faith obstruction of the disciplinary proceeding by

intentionally failing to comply with rules or orders of the disciplinary

agency; (this aggravating factor does not relate to the Respondent's

conduct with the grievance committee).

(i) substantial experience in the practice of law.

Standard 9.32 lists a total of fourteen mitigating factors, which is

likewise not meant to be exhaustive list of all factors a court could consider

in mitigation ofmisconduct. This Court finds that TFIREE of the fourteen

mitigating factors were evident in this matter.

(a) Absence of a prior disciplinary record; 4

4 Prior to the misappropriation of trust funds in August, 2011.

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(d) Timely good faith effort to make restitution or to rectify

consequences ofmisconduct;

(e) Full and free disclosure to disciplinary board or cooperative

attitude toward proceedings. 5

VII. PERSONAL HISTORY, PAST DISCIPLINARY RECORD

Prior to recommending discipline pursuant to Rule 3-7.6(m)(1), I

considered the following:

Personal History:

The Respondent is 54 years old, was admitted to the Florida Bar on

April 21, 1993, and is not board certified in any area of practice. Prior to

this offense, he had no disciplinary history.

VIII. RECOMMENDATION AS TO DISCIPLINARY MEASURES TOBE APPLIED

Having previously found the Respondent guilty of violating the rules

set forth above, and the Respondent having failed to rebut the presumption

of disbarment for misappropriating Mr. Kyzer's funds, I recommend that

the Respondent be disciplined by being disbarred.

It is this Court's firm belief that no lesser disciplinary outcome will be

adequate to "protect the public and the administration of justice from

. 5 Limited only to admission of offense and cooperation with local grievance committee.

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lawyers who have not discharged, will not discharge, or are unlikely to

�042discharge their professional duties to clients, the public, the legal system,

and the legal profession properly." (Standard 1.1).

IX. STATEMENT OF COSTS AND MANNER IN WHICH COSTSSHOULD BE TAXED

I find the following costs were reasonably incurred by the Florida Bar:

See attached Statement of Costs, which comprised Exhibit A to the Bar's

Motion to Assess Costs. No timely objection to said Motion was received

from Respondent. Said Statement of Costs is hereby incorporated by

reference, and is found to be reasonable.

TOTAL COSTS: $5,564.52

It is recommended that such costs be charged to Respondent, and that

interest at the statutory rate shall accrue and be deemed delinquent 30 days

after the judgment in this case becomes final, unless paid in full or otherwise

deferred by the Board of Governors of the Florida Bar.

Respectfully submitted on this the day ofMay, 2014

The Honorable Christin6JI. GreiderCircuit Court Judge/Referee3315 East Tamiami Trail, Suite 202Naples, Florida 34112239-252-8132: TelephoneEmail: kehart@ca.ciis20.org

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Certificate of Service

I HEREBY CERTIFY that the original of the foregoing Report of Refereehas been mailed along with the complete Record to THE HONORABLETHOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South DuvalStreet, Tallahassee, FL 32301, and that true and correct copies of theforegoing Report of Referee were mailed by regular U.S. Mail to JAMESEDWARD RAWE, JR. , Respondent, at his record bar address of 4109 17*Avenue West, Bradenton, Fl. 34206 and jim5981@gmail.com and JulieHeffington, Bar Counsel, The Florida Bar, Tampa Branch Office, 4200George J. Bean Parkway, Suite 2580, Tampa, Fl. 33607-1496 andjheffington(alflabar.org and Adria Quintela, Staff Counsel, The Florida Bar,to her designated email address at aquintel@flabar.org on this the R dayofMay, 2014.

Kerri HartJudicial Assistant

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IN THE SUPREME COURT OF FLORIDA(Before a Referee)

THE FLORIDA BAR, Supreme Court CaseNo. SC13-2104

Complainant,The Florida Bar File

v. No. 2012-11,359 (12B)

JAMES EDWARD RAWE, JR.,

Respondent.

STATEMENT OF COSTS

COMES NOW The Florida Bar and files this Statement of Costs pursuant to

Rule 3-7.6(q) of The Rules Regulating The Florida Bar:

Administrative Fee pursuant to Rule 3-7.6(q)(1)(I) $1,250.00

Auditor Expenses and Fees $2,654.08

Investigators Expenses and Fees $ 620.46

Court Reporters' Fees: $ 826.18

Vicente M. Lucente & Associates:Appearance fee and transcript of Grievance CommitteeEvidentiary Hearing on 5/20/13 - $501.18

Demby & AssociatesAppearance fee at Case Management Conferenceon 1/8/14 - $70.00

Demby & AssociatesAppearance fee Telephonic Pre-Trial ConferenceOn 3/18/14 - $70.00

Exhibit A

Vicente M. Lucente & Associates:Appearance fee Sanctions Hearingon 5/2/14 - $185.00

Bar Counsel Costs: $ 104.80

Case Management Conference at ManateeCounty Judicial Center 1/8/14 - $52.40

Sanctions Hearing at Manatee County JudicialCenter 5/2/14 - $52.40

Investigative Costs $ 42.60

Lexis Nexis search on 2/14/13

Copy Costs $ 66.40

Bank ofAmerica - Response to SubpoenaCopy ofBank Statements

TOTAL $5,564.52

Respectfully submitted,

Julie Marie Heffington, Bar CounselThe Florida BarTampa Branch Office4200 George J. Bean Parkway, Suite 2580Tampa, Florida 33607-1496(813) 875-9821Florida Bar No.: 667439jheffington@flabar.org - primary

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yserralta@flabar.org - secondarytampaoffice@flabar.org - secondary

CERTIFICATE OF SERVICE

I certify that the original hereofhas been furnished by First Class U.S. Mailto The Honorable Christine Greider, Referee, at the Collier County Courthouse,3315 Tamiami Trail E., Suite 405, Naples, Florida 34112 and via email to KerriHart, Judicial Assistant, at KeHart@CA.CJIS20.ORG ; with copies to JamesEdward Rawe, Jr., Respondent, to his record bar address of4109 17th AvenueWest, Bradenton, Florida 34205, and via e-mail to Respondent's record Baraddress of jim5981@gmail.com; and to Adria Quintela, StaffCounsel, The FloridaBar, to her designated e-mail address ofaquintel@flabar.org, on May 5, 2014.

Julie Marie Heffington, Bar Counsel

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IN THE SUPREME COURT OF FLORIDA(Before a Referee)

THE FLORIDA BAR, Supreme Court CaseNo. SC13-2104

Complainant,The Florida Bar File

v. No. 2012-11,359 (12B)

JAMES EDWARD RAWE, JR.,

Respondent.

MOTION TO ASSESS COSTS

The Florida Bar moves for costs to be assessed against Respondent pursuant

to Rule 3-7.6(q), Rules Regulating The Florida Bar, and as grounds therefore states

as follows:

1. The costs incurred by The Florida Bar in this proceeding are set forth

in the Statement of Costs attached hereto as "Exhibit A."

2. The costs incurred by The Florida Bar were necessary and reasonable

and are not excessive.

WHEREFORE, The Florida Bar requests that the Referee assess costs in the

amount of $5,564.52 against Respondent, and that the Referee recommend that

interest at the statutory rate shall accrue and be deemed delinquent thirty (30) days

after the final Order unless paid in full or otherwise deferred by The Florida Bar .

Respectfully submitted,

Julie Marie Heffington, Bar CounselThe Florida BarTampa Branch Office4200 George J. Bean Parkway, Suite 2580Tampa, Florida 33607-1496(813) 875-9821Florida Bar No.: 667439jheffington@flabar.org -primaryyserralta@flabar.org -secondarytampaoffice@flabar.org -secondary

CERTIFICATE OF SERVICE

I hereby certify that the original of the foregoing Motion to Assess Costs wasfurnished by regular U.S. mail to The Honorable Christine Greider, Referee, at theCollier County Courthouse, 3315 Tamiami Trail E., Suite 405, Naples, Florida34112 and via email to Kerri Hart, Judicial Assistant, at KeHart@CA.CJIS20.ORG;with true and correct copies to James Edward Rawe, Jr., Respondent, to his recordBar address of4109 17th Avenue West, Bradenton, Florida 34205, and via e-mailto Respondent's record Bar email address of jim5981@gmail.com; and to AdriaQuintela, Staff Counsel, The Florida Bar, to her record Bar email address ofaquintel@flabar.org, on May 5, 2014.

Julie Marie Heffington, Bar Counsel

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