IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Complainant, Case No. SC09-2318 [TFB File No. 2010-90,071(05A)] v. Case No. SC10-1187 KEITH ALAN MICHAEL MANSON, [TFB File No. 2010-31,551(05A)] Respondent. ______________________________/

THE FLORIDA BAR'S ANSWER BRIEF

JAN K. WICHROWSKI Bar Counsel The Florida Bar 1000 Legion Pl, Ste 1625 Orlando, Florida 32801 (407) 425-5424 Attorney No. 381586 KENNETH LAWRENCE MARVIN Staff Counsel The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Attorney No. 200999 JOHN F. HARKNESS, JR. Executive Director The Florida Bar 651 E. Jefferson Street

Tallahassee, Florida 32399-2300 (850) 561-5600 Attorney No. 123390

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TABLE OF CONTENTS PAGE

TABLE OF CITATIONS ........................................................................................ iii SYMBOLS AND REFERENCES ............................................................................ iv STATEMENT OF THE CASE AND FACTS .......................................................... 1 SUMMARY OF THE ARGUMENT ...................................................................... 13 ARGUMENT ........................................................................................................... 14

POINT I ......................................................................................................... 14 THE REFEREE’S FINDING THAT RESPONDENT IS IN CONTEMPT OF COURT FOR VIOLATING THE TERMS OF HIS CONDITIONAL ADMISSION IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT II ........................................................................................................ 19 THE REFEREE’S FINDING THAT RESPONDENT IS IN CONTEMPT OF COURT FOR PRACTICING LAW WHILE SUSPENDED IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT II ........................................................................................................ 25 THE REFEREE’S RECOMMENDATION OF DISBARMENT IS APPROPRIATE GIVEN THE FINDINGS OF FACT, CASE LAW, AND STANDARDS FOR IMPOSING LAWYER SANCTIONS.

CONCLUSION ........................................................................................................ 30 CERTIFICATE OF SERVICE ................................................................................ 32 CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTIVIRUS SCAN ......... 33 APPENDIX .............................................................................................................. 34 INDEX TO APPENDIX .......................................................................................... 35

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TABLE OF CITATIONS

PAGE Cases The Florida Bar v. Vining, 721 So.2d 1164 (Fla. 1998) .................................. 14, 17 The Florida Bar v. Forrester, 916 So. 2d 647 (Fla. 2005) .............................. 16, 27 The Florida Bar v. Niles, 644 So.2d 504 (Fla. 1994) ............................................ 17 The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970) ....................................... 17 The Florida Bar v. MacMillan, 600 So.2d 457 (Fla. 1992)................................... 17 The Florida Bar v. Committe, 916 So. 2d 741 (Fla. 2005) .................................... 19 The Florida Bar v. Karten, 829 So. 2d 883 (Fla. 2002) ........................................ 19 The Florida Bar v. Frederick, 756 So. 2d 79 (Fla. 2000)...................................... 19 The Florida Bar v. Glick, 693 So. 2d 550, 552 (Fla.1997) ................................... 19 The Florida Bar v. Thomson, 354 So.2d 872 (Fla. 1978) ................................ 19, 20 The Florida Bar v. Lobasz, Case No. SC08-1105 (Fla. February 3, 2011) ..... 24, 28 The Florida Bar v. Spear, 887 So.2d 1242 (Fla. 2004) ................................... 25, 26 The Florida Bar v. Lord, 433 So.2d 983 (Fla. 1983) ............................................. 26 The Florida Bar v. Greene, 589 So.2d 281 (Fla. 1991) ......................................... 28 The Florida Bar v. Weisser, 721 So. 2d 1142 (Fla. 1998) ..................................... 28 The Florida Bar v. Brown, 635 So. 2d 13 (Fla. 1994) ........................................... 28 The Florida Bar v. Bitterman, 33 So. 3d 686 (Fla. 2010) ..................................... 28 The Florida Bar v. D’Ambrosio, 25 So. 3d 1209 (Fla. 2009)................................ 28 The Florida Bar v. Heptner, 887 So.2d 1036 (Fla. 2004) ..................................... 28 The Florida Bar v. Bauman, 558 So. 2d 994 (Fla. 1990) ...................................... 29 Rules Regulating The Florida Bar 3-5.1(g) ......................................................................................................... 9, 22, 23 Florida Standards for Imposing Lawyer Sanctions 6.21 ......................................................................................................................... 26 8.1(a) ...................................................................................................................... 26 9.22(b) .................................................................................................................... 27 9.22(c) .................................................................................................................... 27 9.22(d) .................................................................................................................... 27 9.22(f) ..................................................................................................................... 27 9.22(h) .................................................................................................................... 27 9.4(a) ...................................................................................................................... 27

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SYMBOLS AND REFERENCES

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

Bar," Florida Lawyers Assistance, Inc. shall be referred to as “Florida Lawyers

Assistance, Inc.” or “FLA”. FLA’s protocol of requiring FLA probationers to

check in on a daily basis to find out whether they need to go get tested that day is

referred to as “call-ins” or “check-ins”. The Florida Board of Bar Examiners shall

be referred to as “Florida Board of Bar Examiners” or “the Board”.

The transcript of the final hearing held on September 20, 2010, shall be

referred to as "T1" followed by the cited page number(s). (T1–__)

The transcript of the hearing held on October 7, 2010, shall be referred to as

"T2" followed by the cited page number(s). (T2–__)

The Report of Referee dated September 30, 2010, shall be referred to as

"ROR" followed by the cited page number(s). (ROR–__)

The pleadings in these matters are contained in the Referee’s Index and will

be referred to as (Ref. Index–__).

The Bar's exhibits will be referred to as "B-Ex." followed by the exhibit

number. (B-Ex.__)

Respondent’s exhibits will be referred to as "R-Ex." followed by the exhibit

number. (R-Ex.__)

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Respondent’s Initial Brief shall be referred to as "IB" followed by the cited

page number. (IB–__)

The terms “revocation of conditional admission” and “disbarment” are used

interchangeably, both resulting in the inability to reapply for a minimum of five

years.

1

STATEMENT OF THE CASE AND FACTS

The facts are restated below due to respondent’s omission of certain facts

and evidence in this case. In Case No. SC09-2318, this Court suspended

respondent for 90 days for violations of his conditional admission probation

requirements and remanded the matter to a referee to determine if additional

sanctions were warranted. [Ref. Index–6 (March 19, 2010 suspension order)]

While serving that suspension, respondent practiced law, as charged in SC10-1187.

[Ref. Index–26 (Bar’s Petition in SC10-1187)] Cases Nos. SC09-2318 and SC10-

1187 were consolidated for the purposes of final hearing and discipline, resulting

in the referee’s finding of guilt and recommendation of disbarment. On October 7,

2010, a hearing was held in this matter regarding respondent’s late submission of a

proposed report of referee. Due to the seriousness of this matter and the referee’s

recommended sanction of disbarment, the referee considered respondent’s late

submission. [T2–5] At the hearing, the referee held that his report would stand.

[T2–5]

Respondent’s History Prior to His Conditional Admission

The referee found that it was appropriate to consider why respondent was

placed on conditional admission in considering whether additional discipline was

warranted for respondent’s violation of the terms of his conditional admission.

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[ROR–2] Respondent’s history with the Florida Board of Bar Examiners shows a

multitude of issues of concern about respondent’s conduct including, but not

limited to, the following: (a) respondent’s conviction, by military court-martial, of

misconduct resulting in a sentence of confinement of 15 months; (b) a 6-month

suspension from the Indiana Bar for the above conduct, which involved respondent

having sex with a client who had consulted with respondent as to her divorce and

was specifically found to be vulnerable. The sex took place in a military

courtroom [B-Ex. 14]; (c) lack of candor by the applicant on his sworn Bar

application and during his testimony at his 1995 investigative hearing with the

Board; (d) lack of candor by respondent on his 1994 Florida Insurance License

application; (e) lack of candor by the applicant on his 1996 residential loan

application; (f) driving a car while intoxicated including his 1985 and 1998 arrests

for DUI; (g) abuse of legal process by the respondent; (h) alcohol dependence,

including a December 12, 2002 arrest for DUI and the resulting violation of his

contract with Florida Lawyers Assistance, Inc. by drinking alcohol. Respondent

asserted the defense of rehabilitation to these allegations; (i) failing to timely

disclose the December 2002 arrest to the Board; and (j) lack of respect for the law

due to repeated traffic violations. [ROR–2-3; B-Ex. 1]

As part of the admission process, the Florida Board of Bar Examiners

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investigated respondent’s character and fitness to practice law and subsequently

issued a Report and Recommendation dated March 8, 2005, to the Supreme Court

of Florida relating to respondent’s application for admission to The Florida Bar.

[B-Ex. 1]

Respondent entered into a Consent Agreement on March 1, 2005 [B-Ex. 1]

and was subsequently conditionally admitted to The Florida Bar by order of this

Court dated March 15, 2005. [B-Ex. 2] The March 15, 2005 Order placed

respondent on probation for a period of 5 years based upon the issues outlined in

the Board’s Report and Recommendation and specifically ordered respondent to:

(a) abstain from the consumption of alcoholic beverages; (b) abstain from the use

of controlled substances except as prescribed by a duly licensed medical physician

and approved by Florida Lawyers Assistance, Inc.; (c) participate actively in the

program offered by FLA, during the entire probationary period by complying with

the rehabilitation contract with the organization executed on October 8, 1999, and

by extending indefinitely by the September 2002 Addendum to the contract; (d)

participate actively in Alcoholics/Narcotics Anonymous by attending, at least,

weekly meetings or such greater frequency as required by FLA, and practice

AA/NA principles in all of his affairs and carry the AA/NA message to other

substance dependent individuals; (e) undergo quarterly screening, or screening at

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such greater frequency as required by FLA, to assure screens are random,

consisting of urinalysis on randomly selected dates with notice of four hours or less

at the direction of The Florida Bar to verify his abstinence from the use of alcohol

and controlled substances; and (f) submit quarterly sworn statements to The

Florida Bar by March 31, June 30, September 30, and December 31 during the

probationary period attesting to his compliance with the conditions set forth in 2

(a), (b), (c), (d), and (e). [ROR–3-4; B-Ex. 2]

On March 29, 2005, The Florida Bar wrote to respondent detailing the terms

and conditions of his conditional admission to The Florida Bar. On April 1, 2001,

respondent acknowledged he had received, read and understood the Bar’s March

29, 2005 letter, which explained the terms and conditions of his conditional

admission. [ROR–4; B-Ex. 3;T1–20-21]

Respondent’s History Post Bar Admission

This proceeding is not respondent’s first violation of his conditional

admittee agreement. On November 15, 2007, during his probationary period,

respondent tested positive for alcohol. [ROR–4; B-Ex. 4; T1–22] On February 8,

2008, about 3 years into respondent’s five-year conditional admission, the Bar and

respondent entered into a Joint Stipulation to Extend Probation, as a result of

respondent’s admitted violation of his probation by respondent’s use of alcohol in

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2007. [ROR–4; B-Ex. 5; T1–27] His alcohol use at that time was discovered only

by the Florida Lawyers Assistance, Inc. call-in system requiring probationers to

call-in daily and submit to urine tests on a random basis. Respondent’s use of

alcohol in 2007 would not have been discovered but for the random urine test as

respondent admitted that he was not candid with his FLA monitor about his alcohol

use. [T1–22-23] The joint stipulation extended respondent’s probationary period

and expanded the conditions therein to include increasing respondent’s testing

frequency and extending his FLA contract until November 15, 2010. [ROR–5; B-

Ex. 5] This Court approved the joint stipulation on April 2, 2008, [ROR–5; B-Ex.

6] and the events of Case Nos. SC09-2318 and SC10-1187 followed.

Case No. SC09-2318

This case arises from respondent’s violations as to missing required call-ins

to the FLA testing provider and a November 2009 positive alcohol test. On March

19, 2010, this Court issued an order finding respondent in contempt: “The Court,

having considered the Bar’s Petition for Contempt, the respondent’s response and

the Bar’s reply concludes that the series of acts on the part of respondent constitute

a serious violation of the terms of respondent’s conditional admission…” The

Court suspended respondent for 90 days and referred the matter to a referee to

determine if any other sanctions should be imposed, noting that revocation of the

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respondent’s conditional admission was a possibility. [Ref. Index–6 (March 19,

2010 suspension order)] As respondent is attempting to dispute his guilt as to the

violations of his conditional admission, it is important to note that the referee

clearly relied upon the court’s finding of guilt in its March 19, 2010 suspension

order, referring to it in Section II, paragraph 16 as well as Section III of the Report

of Referee. [ROR–7, 12]

The purpose of respondent’s requirement to call-in every business day to a

testing service provided by FLA is to find out if he has to go into a lab for a

random urine test that day. [T1–31, 67; ROR–5] The reason a missed call-in is

important is that alcohol passes through the human body with time. The longer

one can delay screening, the greater chance of the alcohol use not being detected.

[ROR–6; T1–67]

Respondent was well aware that he was required to call-in daily as part of

his FLA probation. The best evidence of that is respondent’s sworn testimony

[T1–26, lines 18-22]:

Q. What did the procedures require you to do? A. To make – to basically make a telephone call-in on every business day and to find out if there was a requirement for testing and to report to a particular lab to take urinalysis testing. Respondent missed approximately 70 call-ins from 2005 to 2007 [T1–83,

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99-100] which FLA never reported to the Bar. [T1–99] In fact, there was

testimony from FLA that respondent missed 171 call-ins between 2001 and

September 20, 2010, the date of the final hearing. [T1–128, 137]

At the final hearing, respondent produced, for the first time, new reports,

purportedly from a new call-in provider assisting FLA, which were in conflict with

the reports relied upon by FLA and made contemporaneously with the call-ins. [R-

Ex. 1; T1–32-36] Respondent claimed that these new reports had just recently

become accessible to him and acknowledged that he had not mentioned conflicting

reports as a defense in his Answer to the Order to Show Cause in the matter. [Ref.

Index–3; T1–32-33] The director of FLA, Michael Cohen, however, explained

that the best evidence of the missed call-ins would in fact be the reports relied upon

by FLA and the Bar from the provider who had control at the time of the missed

tests, explaining that there was quite likely a mix up by the new provider when

they transferred data from the old provider to the new provider. [T1–139-141]

The referee found this explanation to be credible and relied upon the reports cited

by the Bar as well as the testimony of the FLA director and the Bar’s paralegal in

making the recommendation of disbarment, stating: “It is clear that there were a

significant number of missed call-ins undisputed by the respondent during a time

when his compliance should have been exemplary.” [ROR–6 at paragraph 14]

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In addition to call-ins, monitors are another important way for FLA to

determine whether or not a respondent is in compliance with a FLA contract.

Monitors are individuals that are required to file monthly reports to FLA detailing

the compliance of the individual they monitor. The FLA director, Mr. Cohen [T–

102-103] and the Bar’s paralegal, Sheryl Walker [T1–67] testified, and respondent

acknowledged [T1–23] that as FLA cannot observe every probationer in person,

they rely on monitors to stand in their shoes and report any violations to FLA for

appropriate action. Respondent’s monitor never reported any noncompliance on

respondent’s part. Respondent acknowledged that he was not immediately truthful

with his monitor when he used alcohol during his 2007 probation violation. [T1–

23] FLA testified that they had great reservations about the efficacy of

respondent’s monitors due to their failure to advise FLA of the respondent’s

probation violations. [T–103-104]

On November 16, 2009, respondent again tested positive for alcohol. [B-Ex.

9; T1–41; IB–4] At the time of testing, respondent did not advise the testing

facility that he had taken anything which could affect the test results. [T1–41-42]

Indeed, only upon inquiry did respondent advise FLA that he had taken cold

medicine which contained alcohol but he had not been drinking. [ROR–6; T1–42-

43]. The referee considered respondent’s excuses and defenses and concluded that

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disbarment was the appropriate discipline given the totality of the case. [ROR–6 at

paragraph 14; T2]

Case No. SC10-1187

Respondent was counsel of record in Chase Bank USA, N.A. v. James Gray,

Case Number 10-SC-168 MA, in Duval County Court, Florida at the time his

suspension became effective on April 19, 2010. [B-Ex. 15] Respondent failed to

withdraw from the case, failed to advise opposing counsel or the presiding judge of

his suspension, and also failed to advise his clients, the Grays, that he was

suspended. [T1–161, 164, 183] Respondent communicated with Ms. Gray about

their case while he was suspended and did not advise her of his suspension until

confronted by the Bar about the matter. [ROR–8; T1–161-162]

Respondent submitted a false sworn affidavit to the Bar on April 19, 2010,

pursuant to Rule Regulating The Florida Bar 3-5.1(g), wherein he falsely verified

that he had furnished a copy of his suspension order to all his clients with matters

pending when the order was served on him, to all opposing counsel or co-counsel,

and to all courts, tribunals, or adjudicative agencies before whom he was counsel

of record. [B-Ex. 10] Respondent’s affidavit failed to list James R. Gray as a

client, the presiding court judge, or Philip Anthony Orsi as opposing counsel in the

pending matter, Chase Bank USA, N.A. v. James Gray, Case Number 10-SC-168

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MA. Respondent never took any action to correct the false affidavit. [ROR–11]

Linda Gray testified that she telephoned respondent on the Monday (April

19, 2010) or Tuesday (April 20, 2010) following the trial scheduled for April 15,

2010. They discussed what occurred at the hearing and respondent advised her

that there would be another court hearing in June and that he would set up the

payments then to resolve the matter. Respondent took no action to advise his client

that his suspension became effective April 19, 2010. [B-Ex. 16 at p. 7-8]

Due to Respondent's failure to withdraw from the case, a hearing took place

on May 19, 2010 without the presence of the Grays or their counsel. This resulted

in an adverse judgment against Mr. Gray, causing unnecessary harm and concern.

Ms. Gray testified that she was extremely upset and “hysterical” when she found

out a judgment had been entered against her husband. It was not until June 7,

2010, that respondent advised her that he was suspended from The Florida Bar.

[ROR–8; B-Ex. 16 at p. 11; T1–162] June 7, 2010 was the date in which The

Florida Bar contacted respondent as to his unauthorized practice of law in the case

[ROR–8; B-Ex. 18; T1–168-169].

At respondent’s request, Jacksonville attorney Jeffrey H. Northcutt wrote to

the Bar on June 8, 2010 [B-Ex. 20], regarding the Bar’s intent to take action

against respondent for practicing law while suspended. Mr. Northcutt was

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respondent’s monitor for respondent’s FLA probation [ROR–10], with

responsibility to monitor respondent’s compliance with his FLA contract [T1–102-

103]. Mr. Cohen testified that FLA relies upon the monitors to have credibility

with the Bar and to be truthful with the Bar in all of their dealings in regard to

respondent. [T1–103] However, Mr. Northcutt’s letter is less than candid with the

Bar. While he suggests that he intended to file a notice of appearance, he does not

explain why he did not do so earlier and why he would not have spoken to the

Grays earlier if he was going to represent them. Moreover, Mr. Northcutt accuses

the opposing counsel in the Gray case of acting unilaterally in setting the hearing,

despite the fact that there would have been no way for them to notify Mr. Northcutt

of the matter since he had not entered a notice of appearance. The Referee found

this lack of credibility is troubling in view of the gravity of Mr. Northcutt’s

responsibilities to the Bar, and indeed, to the Supreme Court of Florida, in his

position as a monitor for respondent. [ROR–10]

Respondent also claimed, in his response to the Order to Show Cause, that

the court file was “dormant”. [Ref. Index–29 (Respondent (sic) Response to

Petition for Contempt and Order to Show Cause)] However, there is no indication

whatsoever that the file was dormant. Despite receiving a letter [B-Ex. 17], and

pleadings from opposing counsel, respondent did not notify his client, Mr. Orsi’s

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office, or file anything with the presiding court regarding his April 19, 2010

suspension from The Florida Bar. [ROR–10]

Respondent did not refund the Grays the $275 fee paid to him until July,

2010, after the Bar had filed its petition for contempt in the matter. [Ref. Index–

26; T1–167] At the time of the final hearing, new counsel had entered a notice of

appearance for the Grays and filed to set aside the judgment. [ROR–8; B-Ex. 15]

The adverse judgment, obtained against the Grays in May 2010 while respondent

remained counsel of record, was ultimately set aside by their new lawyer. [T2–8;

IB–32]

In regard to SC10-1187, the referee found respondent guilty of contempt by

holding himself out as an attorney and remaining counsel of record in a client’s

matter without informing the presiding judge, opposing counsel or his client of his

suspension from the practice of law; as well as filing a false affidavit with The

Florida Bar by failing to list the Gray matter on his required affidavit to the Bar.

[ROR–12, 15]

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SUMMARY OF THE ARGUMENT

The record is replete with the many “second chances” that this respondent

has received from the Board, FLA, and the Bar, and with respondent’s skill at

presenting excuses for his misconduct. The referee considered the matter and

provided a thoughtful and detailed report which cited the record and explained why

respondent’s version of the events was not acceptable. The record contains

substantial, competent evidence that clearly and convincingly supports the

referee’s findings of facts and recommendations of guilt. The referee was in the

best position to review the evidence and assess the credibility of the witnesses.

Consistent with its prior holdings, this Court should not reweigh the evidence or

substitute its judgment for that of the referee, but should approve the referee’s

findings of fact and recommendations of guilt for respondent’s violation of the

terms of his conditional admission and his violation of this Court’s suspension

order by engaging in the practice of law and holding himself out as an attorney

while suspended.

Disbarment, as recommended by the referee, is the only appropriate

discipline given the seriousness of respondent’s misconduct.

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ARGUMENT

POINT I

THE REFEREE’S FINDING THAT RESPONDENT IS IN CONTEMPT OF COURT FOR VIOLATING THE TERMS OF HIS CONDITIONAL ADMISSION IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. Respondent’s burden on review is to demonstrate that there is no evidence in

the record to support the referee’s findings or that the record evidence clearly

contradicts the conclusions. The Florida Bar v. Vining, 721 So. 2d 1164, 1167

(Fla. 1998). However, respondent ignores the fact that the Court held respondent

in contempt in regard to these facts on March 19, 2010, noting, “The Court is not

persuaded by the reasons for non-compliance provided by the respondent.”

Further, respondent’s case was forwarded to the referee to determine if additional

sanctions, including the revocation of respondent’s conditional admission, were

warranted. [Ref. Index–6 (March 19, 2010 suspension order)]

The Referee gave due consideration to whether further sanctions should be

imposed for respondent’s misconduct but relied upon the Court’s March 19, 2010

conclusion in making the report. [ROR–7, 12] Further, respondent admits that

there were several missed call-ins [T1–30, 48; IB–23] and that he tested positive

for alcohol on November 15, 2009 [T1–41; IB–4].

As Ms. Walker, the Bar’s paralegal supervising respondent’s compliance

15

with his FLA probation, testified [T1–60]:

Basically, [the conditional admission] is like [an attorney’s] last chance to kind of comply with everything before they're a member in good standing without condition. It usually applies to attorneys who have substance abuse issues or psychological issues. It's just a way of protecting the public a little more. A conditional admittee’s obligation to call-in on a daily basis and submit to

random testing is important as it is an objective way for FLA to monitor an

admittee’s compliance. [ROR–4-5] Respondent contends that the missed call-ins

were a mere oversight and inadvertent due to his being absorbed in the many daily

responsibilities of the practice of law. [IB–24] Had respondent had merely a

handful of missed call-ins, respondent’s argument would be more convincing. The

referee considered respondent’s defenses and rejected them based upon the totality

of the evidence.

In his brief, respondent mischaracterizes Ms. Walker’s testimony by stating

that there was confusion in her office regarding the March 19, 2010 order and the

new reporting procedures regarding missed call-ins. [IB–8] Ms. Walker did not

testify that there was any confusion, rather she testified that resulting from the

March 19, 2010 order, the issue of missed call-ins was viewed more seriously [T1–

84] and that FLA was required to report missed call-ins daily [T1–73].

Respondent argues that he did not have the intent to violate the conditions of

16

his admission. Intent may be established by circumstantial evidence. The Florida

Bar v. Forrester, 916 So. 2d 647 (Fla. 2005). In this case, the volume of

respondent’s missed call-ins as testified to by Michael Cohen [T1–99-100, 137],

and Sheryl Walker [T1–83-84], and especially when viewed in light of

respondent’s prior history of noncompliance with this Court’s March 15, 2005

order granting him conditional admission, clearly establish respondent’s intent.

Respondent vigorously contends that the November 2009 low number on the

positive alcohol test is proof that the consumption of alcohol was merely incidental

resulting from his taking over-the-counter cold medicine. However, Michael

Cohen’s uncontroverted testimony was that the test result number score reflects

two variables, the amount of alcohol ingested and the time elapsed since the

ingestion of the alcohol. [T1–112]

The test results were submitted to the Medical Review Officer (MRO) per

FLA protocol and the MRO reports indicated that the positive test “may be due to

incidental exposure to alcohol.” [ROR–6] Mr. Cohen testified that while the test

result was consistent with the ingestion of a cold medication, it could also be from

drinking alcoholic drinks, depending upon the time and the amount of the alcohol

that was ingested. There was no objective way of knowing whether the positive

test was from cold medication or from intentional alcohol use. [ROR–6; T1–112-

17

114] Mr. Cohen further testified that given respondent’s history of relapses, the

credibility of respondent’s explanation of ingesting alcohol due to taking a cold

medication was questionable. [T1–114, 116]

Furthermore, the standard of proof in a Bar disciplinary proceeding is clear

and convincing evidence. The Florida Bar v. Niles, 644 So. 2d 504, 506 (Fla.

1994), citing The Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970). The Bar met

its burden of proof by clear and convincing evidence, while respondent has failed

to meet his burden of establishing that the record is wholly lacking in evidentiary

support for the referee’s findings. Where a referee’s findings are supported by

competent substantial evidence, it is precluded from reweighing the evidence and

substituting its judgment for that of the referee. Vining 721 So. 2d at 1167, quoting

The Florida Bar v. MacMillan, 600 So. 2d 457, 459 (Fla. 1992). The referee’s

findings and recommendations are clearly supported by the record.

The referee properly found respondent guilty of violating his agreement with

the Supreme Court of Florida. As the referee noted, respondent’s compliance

should have been exemplary given his previous record. [ROR–6] As set forth

above and in the report of referee, the record contains substantial, competent

evidence that clearly and convincingly supports the referee’s findings of facts and

recommendations of guilt. The referee was in the best position to review the

18

evidence, assess the credibility of the witnesses who testified and to determine

guilt. Therefore, consistent with its prior holdings, this Court should not reweigh

the evidence or substitute its judgment for that of the referee, but should approve

the referee’s findings and recommendations.

19

POINT II

THE REFEREE’S FINDING THAT RESPONDENT IS IN CONTEMPT OF COURT FOR PRACTICING LAW WHILE SUSPENDED IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

As noted above, in order for respondent to successfully challenge the

referee’s findings of fact, respondent is required to show that the record lacks

evidence to support the findings or that the referee’s conclusions are clearly

contradicted by the record. The Florida Bar v. Committe, 916 So. 2d 741 (Fla.

2005); The Florida Bar v. Karten, 829 So. 2d 883 (Fla. 2002). “[A] party does not

meet the burden of showing that a referee's findings are erroneous simply by

pointing to contradictory evidence where there is also competent, substantial

evidence in the record that supports the referee's findings.” The Florida Bar v.

Frederick, 756 So. 2d 79 (Fla. 2000) quoting The Florida Bar v. Glick, 693 So. 2d

550, 552 (Fla.1997). The competent, substantial record evidence herein clearly

supports the referee’s findings that respondent practiced law while suspended.

Respondent argues that his conduct in the Gray matter subsequent to his

suspension does not constitute the unauthorized practice of law. Respondent cites

to The Florida Bar v. Thomson, 354 So. 2d 872 (Fla. 1978), to support his position

that a suspended attorney may work as a paralegal where he does not hold himself

out as an attorney in his contact with clients, that any such client contact is casual

20

and minimal and does not include the rendering of legal advice.

Thomson was given permission, via a court order, to continue limited

supervised employment as a paralegal while suspended. The Court noted that the

client contact Thomson had was casual and minimal as he had not held himself out

to be an attorney during the contact which was largely to relay information to

attorneys that were out of the office and did not include legal advice. The Court

then went on to state, “Nothing in this opinion, however, is to be taken as an

indication that this Court, in the future, will tolerate direct client contact by a

suspended attorney performing lay legal services.” Id. at 874.

Clearly, respondent’s conduct is wholly dissimilar to Thomson’s.

Respondent, through a deliberate omission, held himself out as an attorney to Ms.

Gray on more than one occasion during his suspension. Respondent was the

attorney of record in the Gray matter. [B-Ex. 15] Ms. Gray had no cause to think

that respondent was no longer a practicing attorney as respondent failed to inform

her of his suspension. It is beyond reason to believe, without respondent’s

notification, that Ms. Gray would consider respondent a layperson rather than an

attorney duly authorized to practice law.

Respondent clearly gave legal advice to his client in April and May of 2010,

while suspended. Specifically, he advised Linda Gray as to how the case would be

21

resolved and what she could expect, namely a payment plan which would be

worked out with the opposing party to resolve the matter at the June hearing. As

such, respondent provided legal advice to Ms. Gray. [B-Ex. 16 at pp. 7-10]

Respondent’s conduct caused his client severe emotional distress when she

received, in the mail, news that the case had concluded with an adverse judgment

against her husband. [B-Ex. 16 at pp. 11] When Ms. Gray contacted respondent,

he advised her that when he returned from out of town he would take care of it.

[B-Ex. 16 at p. 10; T1–162] At no time during the April or May contact with Ms.

Gray did respondent inform her of his suspension and inability to practice law.

Respondent’s contact with Ms. Gray can most certainly not be considered casual or

minimal.

Similarly, respondent never indicated to the opposing counsel, Mr. Orsi or

Ms. Howland, his legal assistant, that he was suspended [T1–153] or that he was

acting in “an administrative capacity” for another attorney during the May 2010

contact they had to set a hearing. On the contrary, Ms. Howland testified that

respondent informed her telephonically that he could not commit as he would

possibly be out of town and that he would have to get back with her. [T1–151,

157] She then followed up that same date, by email, asking when respondent

would be available for the hearing. [B-Ex. 17; T1–155] The following day,

22

respondent advised Ms. Howland, by email, that June 23rd would be fine. [B-Ex.

17; T1–155] Ms. Howland reasonably believed that respondent was still eligible to

practice law as he remained counsel of record in the Gray matter and respondent

never informed her of his suspension. In her communications with respondent, she

was clearly seeking his availability to attend a hearing on the Gray’s behalf.

Respondent chose not to notify her or Mr. Orsi of his ineligibility to practice law.

The referee was in the best position to weigh the credibility of both Ms.

Howland and respondent. The referee specifically found that respondent neither

informed Mr. Orsi nor Ms. Howland that he was not a member in good standing of

The Florida Bar nor that he was acting as a conduit for another attorney. [ROR–9]

Rule 3-5.1(g) of the Rules Regulating The Florida Bar provides that a

suspended attorney shall “forthwith” provide a copy of the order to “(1) all of the

respondent’s clients with matters pending in the respondent’s practice; (2) all

opposing counsel or co-counsel in the matters listed in (1), above; and (3) all

courts, tribunals, or adjudicative agencies before which respondent is counsel of

record.”

Respondent admitted that he failed to notify the Grays of his suspension

[IB–29], failed to notify the presiding judge of his suspension, and failed to list the

case in his affidavit to the Bar. [ROR–8; T1–161, 163-164; IB–28]

23

Respondent’s testimony at the final hearing is inconsistent with his

Response to Petition for Contempt and Order to Show Cause. In his response, he

stated that he did not notify those involved in the Gray case of his suspension as

“there were no actively scheduled events in the dormant case.” [Ref. Index–29

(Respondent (sic) Response to Petition for Contempt and Order to Show Cause)]

At the final hearing, respondent alternately asserted that he had forgotten the case

was pending [T1–196] as he did not take any action to check what cases he had

pending other than looking at his calendar [T1–215]. Since nothing was

calendared, respondent stated that he forgot the case was pending and failed to list

it in his affidavit or notify those involved. [ROR–9]

However, respondent appeared at the pretrial conference in this matter on

February 25, 2010. Thereafter, a Pretrial Conference Order and the Notice of Trial

was signed by the judge in the case which clearly set the trial date for April 15,

2010. [B-Ex. 15] As respondent submitted his affidavit to the Bar on the effective

date of his suspension, only four days after the April 15, 2010 hearing, respondent

was clearly aware that the Gray matter was not dormant. The referee found that

respondent’s failure to advise Ms. Gray of his suspension or correct his affidavit to

the Bar, withdraw from the Gray case, or otherwise comply with rule 3-5.1(g),

made respondent’s assertions of neglectful forgetfulness incredible. [ROR–9]

24

Respondent’s repeated failure to notify any of the parties in the Gray matter

of his suspension, his repeated communications with Ms. Gray and Ms. Howland

where he held himself out as an attorney and his failure to take any steps to correct

the affidavit he submitted to the Bar as supported by the record, clearly

demonstrates respondent’s intentional violation of this Court’s suspension order.

The assertion that Mr. Northcutt had taken over the case is unsupported by the

evidence. [ROR–10]

Nevertheless, intent is not a necessary requirement to finding that respondent

violated this Court’s suspension order. In this Court’s recent decision, The Florida

Bar v. Lobasz, No. SC08-1105 (Fla. Feb 3, 2011), the referee found, and the Court

upheld, that Lobasz did not intentionally violate the Court’s order of suspension,

due to his state of mind. Despite this, Lobasz was found in contempt and disbarred

for practicing law while suspended.

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POINT III

THE REFEREE’S RECOMMENDED DISCIPLINE OF DISBARMENT IS APPROPRIATE GIVEN THE FINDINGS OF FACT, CASE LAW, AND STANDARDS FOR IMPOSING LAWYER SANCTIONS.

The Bar submits that based on the available case law and the Florida

Standards for Imposing Lawyer Sanctions, the referee’s recommended discipline

of disbarment is appropriate. The referee made his disciplinary recommendation

after considering the evidence, relevant case law, and applicable aggravating and

mitigating factors. As a general rule, the Court will not second-guess a referee’s

recommendation of discipline as long as the discipline is authorized under the

Florida Standards for Imposing Lawyer Sanctions and has a reasonable basis in

existing case law. The Florida Bar v. Spear, 887 So. 2d 1242, 1246 (Fla. 2004).

Respondent’s conduct occurred while he was on probation resulting from his

conditional admission and while he was suspended from the practice of law. The

referee considered respondent’s prior history of misconduct in making this

recommendation, as appropriate. [ROR–15] Clearly, respondent’s conduct at this

time should have been exemplary and in keeping with the highest ethical standards

of the legal profession. The referee found that respondent’s attitude towards the

rules regulating his privilege to practice law was cavalier at best. [ROR–12] He

specifically noted [ROR–12] that:

26

While it is always tempting to give someone another chance, the record is replete with the multitude of second chances previously given to respondent by both The Florida Board of Bar Examiners and The Florida Bar in regard to his voluntary agreement with The Florida Bar and the Florida Board of Bar Examiners in regard to this matter. A judgment must be fair to society, fair to the respondent, and severe enough

to deter others who may be tempted to become involved in like violations. Spear

887 So. 2d at 1246, citing The Florida Bar v. Lord, 433 So. 2d. 983, 986 (Fla.

1983). Respondent’s egregious misconduct should not be taken lightly.

Disbarment would adequately protect the public, suitably address respondent’s

misconduct and act as an effective deterrent.

The referee’s disciplinary recommendation is supported by the Florida

Standards for Imposing Lawyer Sanctions, as outlined in the referee’s report.

Disbarment is appropriate pursuant to Standard 6.21 when a lawyer knowingly

violates a court order or rule with the intent to obtain a benefit for the lawyer or

another, and causes serious injury or potentially serious injury to a party or causes

serious or potentially serious interference with a legal proceeding. Disbarment is

also appropriate under Standard 8.1(a) when a lawyer intentionally violates the

terms of a prior disciplinary order and such violation causes injury to a client, the

public, the legal system, or the profession.

The referee found no mitigation herein. In fact, the referee specifically

27

noted that:

...despite the fact that respondent was well aware of the gravity of the charges against him, and the fact that he was facing the loss of his license to practice law in this state, he failed to call a single witness in either of the two cases, other than himself, as to either the charges against him or as to his character and rehabilitation. [ROR–14] While respondent did refund the legal fee to the Grays, the referee rightly

found it to be forced or compelled restitution as it was not made until he was

notified that the Bar was contemplating seeking his emergency suspension for his

practicing law while suspended. Thus it fell under Standard 9.4(a), which is

neither mitigation nor aggravation. [ROR–15]

In aggravation, the referee considered respondent’s dishonest or selfish

motive, the pattern of misconduct, the multiple offenses, respondent’s submission

of false evidence, false statements, or other deceptive practices during the

disciplinary process, and the vulnerability of the victim. See Fla. Stds. Imposing

Law. Sancs. 9.22(b), 9.22(c), 9.22(d), 9.22(f), and 9.22(h), respectively. [ROR–

15]

In The Florida Bar v. Forrester, 916 So. 2d 647 (Fla. 2005), the Court, in

determining that disbarment was warranted for practicing law while suspended,

noted that “[t]he purpose of contempt proceedings brought against an attorney for

violation of an existing disciplinary order is to punish the offending attorney and to

28

vindicate the authority of this Court to discipline Florida attorneys”, at 651.

In The Florida Bar v. Greene, 589 So. 2d 281 (Fla. 1991), this Court held

that disbarment was warranted for practicing law while suspended, noting that a

further suspension of an already disciplined lawyer who practices while suspended

“would be fruitless.” Greene, at 282.

In The Florida Bar v. Weisser, 721 So. 2d 1142 (Fla. 1998), Weisser was

disbarred for 10 years for practicing law while suspended and it was found that his

conduct was intentional and involved untruthful testimony by the respondent.

In The Florida Bar v. Lobasz, Case No. SC08-1105 (Fla. February 3, 2011),

this Court reiterated:

In contempt cases, a respondent’s ‘clear violation of any order or disciplinary status that denies an attorney the license to practice law generally is punishable by disbarment, absent strong extenuating factors.’ Florida Bar v. Brown, 635 So. 2d 13, 13-14 (Fla. 1994)...the presumptively correct sanction in this case is disbarment unless there are strong extenuating factors. Brown; see also Florida Bar v. Bitterman, 33 So. 3d 686, 688 (Fla. 2010) (holding suspended attorney in contempt for engaging in the practice of law and disBarred); Florida Bar v. D’Ambrosio, 25 So. 3d 1209, 1220 (Fla. 2009) (same); Florida Bar v. Heptner, 887 So. 2d 1036, 1045 (Fla. 2004) (same). Respondent repeatedly failed to abide by the terms of his conditional

admission to the Bar as well as this Court’s suspension order and applicable rules.

As noted by this Court in another case, “[w]e can think of no person less likely to

29

be rehabilitated that someone like respondent, who willfully, deliberately, and

continuously, refuses to abide by an order of this Court.” The Florida Bar v.

Bauman, 558 So. 2d 994 (Fla. 1990), where a lawyer was disbarred for practicing

law during a six-month suspension.

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CONCLUSION

In this matter, respondent was found in contempt and suspended by this

Court for violating the terms of his conditional admission for several missed call-

ins and testing positive for alcohol. Respondent admitted that he failed to notify

the court, the opposing counsel or his client of his suspension. He also admitted to

the direct contact with Ms. Gray and Ms. Howland and his failure to list the Gray

matter in the affidavit submitted to the Bar. Respondent should not be allowed to

maintain his privilege to practice law when he has repeatedly violated the terms of

his conditional admission and the Court’s suspension order.

WHEREFORE, The Florida Bar prays this Honorable Court will affirm the

referee’s recommendations and tax costs currently totaling $3,390.97 against

respondent with interest accruing at the legal rate 30 days after this Court’s order

becomes final.

Respectfully submitted, JOHN F. HARKNESS, JR. Executive Director The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Attorney No. 123390 KENNETH LAWRENCE MARVIN Staff Counsel The Florida Bar

31

651 East Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5600 Attorney No. 200999 AND JAN K. WICHROWSKI Bar Counsel The Florida Bar 1000 Legion Pl, Ste 1625 Orlando, Florida 32801 (407) 425-5424 Attorney No. 381586 By: _____________________________ Jan K. Wichrowski Bar Counsel

32

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven (7) copies of The Florida

Bar’s Answer Brief have been sent by First Class Mail to the Clerk of the Court,

The Supreme Court of Florida, Supreme Court Building, 500 South Duval Street,

Tallahassee, Florida, 32399-1927; a copy of the foregoing has been furnished by

electronic filing to the Clerk of the Court; a copy of the foregoing has been

furnished by First Class Mail to Adam Rowe, Counsel for Respondent, 12627 San

Jose Boulevard, Jacksonville, Florida 32223; and a copy of the foregoing has been

furnished by First Class Mail to Staff Counsel, The Florida Bar, 651 East Jefferson

Street, Tallahassee, Florida 32399-2300, this _______ day of February, 2011.

Respectfully submitted,

___________________________ Jan K. Wichrowski Bar Counsel

33

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

Undersigned counsel does hereby certify that the Answer Brief is submitted

in 14 point proportionately spaced Times New Roman font, and that the brief has

been filed by e-mail in accord with the Court’s order of October 1, 2004.

Undersigned counsel does hereby further certify that the electronically filed

version of this brief has been scanned and found to be free of viruses, by Norton

AntiVirus for Windows.

_____________________ Jan K. Wichrowski Bar Counsel Attorney No. 381586

34

IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Complainant, Case No. SC09-2318 [TFB File No. 2010-90,071(05A)] v. Case No. SC10-1187 KEITH ALAN MICHAEL MANSON, [TFB File No. 2010-31,551(05A)] Respondent. ______________________________/

APPENDIX TO COMPLAINANT'S ANSWER BRIEF

JOHN F. HARKNESS, JR. Executive Director The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850)561-5600 Attorney No. 123390 KENNETH LAWRENCE MARVIN Staff Counsel The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300 (850)561-5600 Attorney No. 200999 JAN K. WICHROWSKI Bar Counsel The Florida Bar 1000 Legion Pl, Ste 1625 Orlando, Florida 32801 (407)425-5424 Attorney No. 381586

35

INDEX

PAGE Report of Referee .................................................................................................... A1 Florida Board of Bar Examiners’ Report and Recommendation ......................... A18