# Petition for Writ of Certiorari — Roby v. Danzig

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1116

## Text

ies FILED
BBL B77 yav4 1999

OFFICE OF THE CLEKK

No.

In The

Supreme Court of the United States

October Term, 1998

THELMA ROBY
DARLENE SHARPE
JAMES WELCOME,
Petitioners,
VS.
JOHN H. DALTON,
Respondent.

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit Court

PETITION FOR WRIT OF CERTIORARI

THELMA L. ROBY, Pro Se
DARLENE D. SHARPE, Pro Se
JAMES R. WELCOME, Pro Se
502 North Green Street
Pensacola, Florida 32505

(850) 432-4090

9
>

a

i
QUESTION(S) PRESENTED

Are the issues outlined in the appeal before this
Supreme Court precedent setting?

Were the Plaintiffs-Appellants’ constitutional nghts to
due process denied when the Appeals Court upheld the
lower court decision to dismiss the aforementioned
complaints including Johnson et. al., case number
94-30165RV, even after they were made aware that the
Attorney of Record for the Plaintiffs-Appellants was
incompetent, lacked standing, and was on suspension by the
Florida Bar to practice law in the State of Florida?

Would the fact that an attomey who has been
sanctioned for disciplinary action by the lower court for
similar failures, require a higher level of constitutional
scrutiny by the District Court for failure to adequately
exercise the duties and responsibilities to properly defend
her clients, in order to ensure other clients did not fall prey
to the same deficiencies (see LW 96-1072 Robb VS.
Mississippi Bar)?

Were the Pilaintiffs-Appellants denied their
constitutional rights to due process of law, as stated in the
fourteenth amendment of the Constitution of the United
States, when their Counsel of Record, Sadie Moore Stewart,
failed to diligently represent her clients, explain matters to
them, and inform them that she was under suspension to
practice law in the United States District Court for the
Northern District of Florida?

Are the Plaintiffs-Appellants entitled to due process of
law because of their legal representative’s failure to provide
adequate defense, failure to timely respond to motions, and
failure to correct deficiencies in original filing of claim?

il

When the Northern District Court severed the case of
Abraham Johnson, et. al into 48 separate cases, was the
court's failure to grant discovery to each individually named
Plaintiff a violation of Plaintiffs-Appellants’ Constitutional
right of due process?

Did the Appeal Court violate Rule 39 (d) when it
allowed the taxable cost out of time?

anette

aloe GA aD BLM A oy . sth eel

PR Ad he

il

PARTIES TO THE PROCEEDING BELOW

The parties before this Court are those set forth in the
caption, as well as those listed below.

COX, BIRCH AND MARCUS,
Circu:t Judges, United States Court of Appeals, Eleventh
Circuit

ANTHONY R. CROUSE,
Special Assistant, U.S. Attorney,
Counsel for Defendant-Appellee

ANDREA HEFFERNAN,
Counsel for Defendant-Appellee

PAMELA A. MOINE, Assistant U.S. Attorney,
Counsel for Defendant-Appellee

P. MICHAEL PATTERSON, U. S. Attorney,
Counsel for Defendant-Appellee

MARK EVAN FREDERICK, Esquire,
Prior Counsel for Plaintiff-Appellant

SADIE MOORE STEWART, Esquire,
Prior Counsel for Plaintiff-Appellant

THE HONORABLE ROGER VINSON,
United States District Judge, Northern District of Florida

iv
TABLE OF CONTENTS
Page
SI II iia seissicc cecercsninvarondasnxeswigciapssctcoonaonss i
Parties to the Proceeding Below......................ccce000c0008- iii
Fe Oe EI ca ivittisdereecesssstecinbieirervtcenmennnactenes iv
Tee EE i iii tiated v
Petition for Writ of Certiorari .................cccsccceseseescesseees |
Seotennetlt CE FIN assis: The purpose of the PPP is to provide at least one valid job offer to each PPP
registrant who either has been or is scheduled to be adversely affected by a
reduction in force or workload transfer. (Gonzalez deci.)

OPEN BE sb A OIC LEST Vitae Se ae Rel

ee

—

Sla
Appendix B

As part of the Title V11 Plaintiffs prima facie case,
the Plaintiff must show that his employer treated similarly
situated employees outside his Classification more favorably
than himself. Coutu vy. Martin Cty. Bd of Cty.
Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995). If a
Plaintiff fails to show the existence of a similarly situated
employee, summary judgment is appropriate where no other
evidence of discrimination is present. See. e.g. Mack v.
Great Atlantic and Pacific Tea Co., 871 F.2d 179, 182 (ist
Cir. 1989). Here, Welcome has failed to show that similarly
situated employees outside his classification were allowed
to register on the PPP without being "fully qualified" for the
position. Weicome has offered no evidence supporting an
inference of discrimination. But even assuming that
Welcome has established a prima facie case, the defendant
is still entitled to summary judgment on Welcome’s PPP
claim. Once the Plaintiff has established a prima facie case,
thereby raising an inference that she was the subject of
intentional race discrimination, the burden shifts tc the
defendant to rebut this inference by presenting legitimate.
non-discriminatory reasons for its employment action. Texas
Dep't of Community Affairs v Burdine, 450 U.S.248. 101
S.Ct.1089, 67 L.Ed2d 207 (1981). This intermediate
burden is "exceedingly light.” Turnes v. AmSouth Bank,
N.A.,36 F.3d 1057,1061 (11th Cir 1994). The defendant has
fully met its burden in this case

The evidence in the record shows that Welcome was
not registered as an Equal Employment Specialist on the
PPP because he was not “fully qualified” for the position, as
1S required. On the basis of Welcome's SF 171, HRO
specialists found that Welcome did not have sufficient EEO
experience to step into the pesition of Equal Employment

52a
Appendix B

Specialist without training. Welcome has produced no
evidence that the defendant did not properly follow its
procedures, or that he had the requisite experience to qualify
under the criteria. Nor has Welcome shown that the use of
the criteria constituted a pretext for discrimination.
Welcome has failed to establish that the defendant's
proffered reason is unworthy of credence, or that the
defendant was more likely motivated by a discriminatory
reason in taking its actions. See Karazanos v. Navistar Int'l
Transu. Corp., 948 F.2d 332, 336 (7th Cir.1991). Since the
defendant has proffered evidence supporting a legitimate,
nondiscriminatory reason for not enrolling Welcome on the
PPP, and Welcome has not come forward with any evidence
to show that this reason is pretextual, summary judgment is
warranted. See Richmond v. Board of Resents of
Universitv of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992);
Karazanos, 948 F.2d at 336; Mason v. Pierce, 774 F.2d
825, 829 (7th Cir. 1985).

(c) Equal Emplovment Opportunity Training

Welcome alleges that he was denied the opportunity
to attend an EEO Formal Complaint Process training
process by Janice Swann, a white female.

In March 1994, Welcome requested permission to
attend the CNET Equal Employment Opportunity
Practitioners’ Workshop. The purpose of the workshop was
to provide training for EEO practitioners whose official
duties concerned EEO matters. Attendance to Tracks I and
II of the workshop were limited to such practitioners, and
involved the examination of actual EEO complaints. (Swann

53a
Appendix B

decl.) However, Track III was open to non-specialists.
Since Welcome was a member of NADEP's Commanding
Officer Action Committee on EEO, a voluntary advisory
group, he was allowed to enter Track III, even though he
was not eligible for Tracks I and 11. (Welcome dep., at 79)

On March 16, 1994, Welcome entered Janice Swann's
Track II classroom. Swann informed Welcome that he was
in the wrong classroom, since he could not attend Track II
classes, and Welcome left. (Welcome dep., at 77) Welcome
testified in his deposition that he believed discrimination
was the basis for Swann's action. However, Welcome's
conclusory allegations of discrimination are insufficient to
create an issue of fact. Meiri v. Dacon. 759 F.2d 989, 998
(2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88
L.Ed.2d 74 (1985). Welcome docs not dispute that he was’°
not registered for Track II classes, and was not eligible to
register for such classes. He has presented no evidence,
circumstantial or otherwise, to support his allegation that
Swann asked Welcome to leave her class on the basis of
Welcome's race. The central inquiry in evaluating whether
the Plaintiff has met his initial burden in a Title V1] Case is
whether the circumstantial evidence presented is sufficient
to create an inference of discrimination. Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1123 (11" Cir. 1993): Shah v.
General Electric Co., 816 F.2d 264, 268 (6th Cir. 1987).
Sufficient evidence is simply not present in this case as to
Welcome's claim concerning the Track II] workshop.

(b) Retaliation

Welcome alleges that the defendant retaliated against
him when Lee Weiland, an HRO employee, refused to

54a
Appendix B

speak with Welcome about Welcome's PPP registration
because of Welcome's pending EEO complaint against
Weiland. Welcome contends that Weiland’'s actions
interfered with Welcome's job placement and PPP
registration. The defendant argues that Weiland's action did
not constitute a adverse employment action under Title Vi 1,
and that Welcome has not established a prima facie case of
retaliation.

To establish a prima facie case of retaliation, the
Plaintiff must show: (1) that he engaged in statutorily
protected expression; (2) that he suffered an adverse
employment action; and (3) that there is some causal
relationship between the two events. Meeksv. Computer
Associates Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994);
E.E.O.C. v. Ohio Edison Co., 7 F.3d 541 (6th
Cir.1993):Archuleta v. Colorado Dept. of Institutions, 936
F.2d 483 (10th Cir. 1991). The term “employment action"
may be construed in light of Section 2000e-2(a) (1), which
makes it an unlawful employment practice to discriminate
against an individual with respect to "compensation, terms,
conditions, or privileges of employment ...." See, e.g.,
Jordan v. Clark, 847 F.2d 1368, 1373 n.3 (9th Cir. 1988),
cert. denied, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d
778 (1989); Bundy v. Jackson, 641 F.2d 934, 942 (D.C.Cir.
1981). See also Chandler v. Roudebush, 425 U.S. 840, 841,
96 S.Ct. 1949, 1950, 48 L.Ed.2d 416 (1976).

The Plaintiff alleges that Weiland's retaliatory actions
interfered with his job placements in PPP registration. "He
being supervisor staffing specialist of HRO, | feel that he
displayed his true racist attitudes toward me in his
comments.” (Welcome dep., at 102) According to Weiland,

55a
Appendix B

he could not answer Welcome's questions about the
specifics of his PPP registration because Welcome's
questions were the subject of Welcome's EEO complaint
against him. (Wetland decl.) Welcome has produced no
evidence that Weiland's action harmed him, or affected his
PPP registration. Shortly after the incident, Weiland was

Welcome has failed to show how Weiland's action
affected his terms or conditions of employment. Since the
Plaintiff has not shown that he was subjected to an adverse
job action, he has failed to establish a prima facie case of
retaliation, McDonnell Douglas Com. v. Green. 41] US.
792, 802, 93 S.Ct 1824, 36 L.Ed.2d 668, 677 (1973);

outu v. in _ Bd. of _ Commissioners, 47 F 3d
1068, 1073 (11th Cir. 1995).

Even assuming that Welcome has established a prima
facie case of retaliation, the defendant is stil] entitled to
summary judgment on Welcome's retaliation claim. Once
the Plaintiff establishes his prima facie case, the employer
must proffer a legitimate, non-discriminatory reason for the
adverse employment action. EEOC. v._Reichhold
Chemical, Inc., 988 F.2d 1564,1571-72 (11th Cir.1993). If
the employer offers legitimate reasons for the employment
action, the Plaintiff must then demonstrate that the
employer's proffered explanation is a pretext for retaliation.

Meeks, 15 F.3d at 1021: Goldsmith v. City of Atmore, 996

F.2d 1155, 1163 (11th Cir. 1993).

Here, Welcome alleges that Weiland refused to
answer his questions about PPP registration. Weiland states

56a
Appendix B

in his affidavit that when Welcome's request to add Equal
Employment Specialist to his PPP registration was denied,
Welcome filed an EEO complaint naming Weiland as a
respondent on March 3, 1994. (aft. to doc. 388, Weiland
decl.) On May 23, 1994, when Welcome was reviewing his
PPP folder, he asked Weiland to answer some questions.
Weiland told Welcome that he could not answer certain
questions about the PPP folder, since the questions were the
subject of the EEO complaint Welcome had filed against
him in March 1994, and were part of an ongoing
investigation. (aft. to doc.388, Weiland decl.) Weiland
requested that Tom Easley and Berniece Reboulet answer
the questions. The defendant has definitely met its burden of
presenting legitimate, non-discriminatory reasons for
Weiland’s action.

Pursuant to departmental policy, Weiland could not
answer Welcome's questions because of the pending EEO
complaint. Welcome has not refuted the evidence offered by
the defendant, and has failed to demonstrate that the
defendant's proffered explanation is a pretext for retaliation.
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th
Cir. 1993). In this case, the defendant's evidence of a
legitimate, non-discriminatory reason for its action is so
strong as to rebut completely the inference raised by the
Plaintiffs prima facie case of retaliation. See Gnrgsbv_ v.
Reynolds Metals Co., 821 F.2d 590, 596 (11th Cir.1987).

The evidence supporting Welcome's prima facie case is
simply not sufficient to create an issue of fact in light of the
substantial evidence of lawful motive presented by the
defendant. As a result, the defendant is entitled to summary
judgment on the Plaintiff's retaliation claim.

57a

Appendix B

[f. CONCLUSION

For the reasons discussed above, the defendant's
motion for summary judgment is GRANTED as to the
claims of James R. Welcome. (doc. 325) The defendant's
motion for partial Summary judgment on the disparate
treatment and retaliation claims of Plaintiff James R.
Welcome is GRANTED. (doc. 387) The Clerk shall enter
judgment for the defendant and against plaintiff Welcome,
together with taxable costs.

DONE AND ORDERED this 8" day of August, 1996.

“e/ ”

ROGER VINSON
United States District Judge

58a

APPENDIX C-——-ORDERS (3) DENYING
REHEARING IN THE UNITED STATES COURT OF
APPEALS
FOR THE ELEVENTH CIRCUIT FILED
OCTOBER 6, 1998, SEPTEMBER 16, 1998 AND
OCTOBER 20, 1998

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 96-3689

THELMA ROBY,
Plaintiff-Appellant,
versus

JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.

On Appeal from the United States District Court for the
Northern District of Florida

BEFORE: COX, BIRCH AND MARCUS, Circuit Judges.
PER CURIAM:

The petition for rehearing filed by the appellant is
DENIED.
ENTERED FOR THE COURT:

“s/EMMETT R. COX”.
UNITED STATES CIRCUIT JUDGE

ORD-41

59a
Appendix C

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 96-3412

DARLENE D. SHARP,

Plaintiff-Appellant,
versus

JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.

Appeal from the United States District Court for the
Northern District of Florida

BEFORE: COX, BIRCH AND MARCUS, Circuit Judges.

PER CURIAM:

The petition for rehearing filed by the
appellant is DENIED.

ENTERED FOR THE COURT:

“s/EMMETT R. COX”.
UNITED STATES CIRCUIT JUDGE

ORD-41

60a
Appendix C

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 96-3689

JAMES R. WELCOME,
Plaintiff-Appellant,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.

On Appeal from the United States District Court for the
Northern District of Florida

ON PETITION(S) FOR REHEARING AND
SUGGESTION(S) OF REHEARING EN BANC
(Opinion 1° Ce 2

Before: COX, BIRCH AND MARCUS, Circuit Judges.
PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member
of this panel nor other Judge in regular active service on the
Court having requested that the Court be polled on
rehearing en banc (Rule 35, Federal Rules of Appellate
Procedure, Eleventh Circuit Rule 35-5), the Suggestions(s)
of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

“s/EMMETT R. COX”,
UNITED STATES CIRCUIT JUDGE

ORD-42
(6/95)

6la

APPENDIX D——AGREEMENT FOR
REPRESENTATION BETWEEN ATTORNEY SADIE
MOORE STEWART AND PLAINTIFFS SIGNED
NOVEMBER 6, 1995

AGRE R REPRESENTATION
FEE:

As compensation for services, Cohesion, Inc., agrees to pay
Attorney Sadie Moore Stewart a fee of $15,000. This
agreement is entered into by and among all named Plaintiffs
regarding case No. 94-30165-RV, Johnson, et.al. V. John
H. Dalton, Secretary of the Navy and Attorney Sadie Moore
Stewart, Fla. Bar # 970530.

ATTORNEYS' RESPONSIBILITIES:

Attorney Stewart is responsible for the timely answering of
any and all outstanding motions, ensuring that all
interrogatories and production of documents are properly
addressed, scheduled interviews with all Plaintiff's to ensure
that all interrogatories are properly addressed and answered,
ensure adequate time is allowed for PLAINTIFFS,
individually or the Board of Directors of Cohesion, Inc.,
where issues affect all PLAINTIFFS or multiple
PLAINTIFFS, to review legal actions prior to timely filing.

Conduct any all Depositions and requests for production of
documents.

Render timely responses and complete all motions thereto.

Provide legal counseling and representation to PLAINTIFFS
when necessary to ensure compliance with this agreement.

62a
Appendix D

Submit written reports of all actions taken on behalf of
PLAINTIFFS on a monthly basis. Said reports will be
mailed to COHESION, INC.,at P.O. Box 16189,
Warrington, Fla. 32507 within five days of the end of each
month until full settlement of aforementioned case or
superseding of this agreement by mutual consent of the
parties hereto whichever occurs first.

We understand and agree that our attomey will render
periodic statements to us indicating the current status of our
account and complaint.

ATTORNEY'S ALLOWED TO EXERCISE LIMITED
DISCRETION:

1 understand or have had explained to me, the fact that it
frequently becomes necessary for an attorney to make
choices of alternatives that may be presented in the courses
of his/her representation of us.

We further understand that full discussion of such
alternatives may not be practical or even possible in a given
situation. Therefore, we authorize our attorney to exercise
discretion after discussion with any one of the designated
executive board members.

Subsequent to any negotiations or settlement talks, we agree
that our attorney will meet, discuss and obtain approval of
the full body unless time restricts and time constraints are
required approval from the board with a two third vote.

63a
Appendix D
CONSTRUCTION OF AGREEMENT:

This agreement will be construed and interpreted according
to the Laws of the State of Florida and the Code of
Professional Responsibility. No paragraph heading will be
relied upon or utilized in the interpretation of any of this
agreement such readings being for convenience only, and in
all references herein to persons, whether attomey, client or
others, the use of any particular gender or the plural or
singular number is intended to include the appropriate
gender of numbers as the written instrument may require.

RIGHTS OF CLIENT TO CANCEL:

This contract may be canceled by written notification to the
attomey at any time it is deemed the attomey is flagrantly
missing deadlines, not responding to motions, causing
unnecessary delays in the timely processing of this lawsuit.
If canceled the client, will not be obligated to pay any fee to
the attorney for the work performed during this period. If
the attorney has advanced funds to others in representation
of the client, the attorney is entitled to reimbursement for
such amounts as he or she has reasonably advanced on
behalf of the client.

IN WITNESS WHEREOF., the parties hereto have executed
this agreement the date stated below. This agreement shall
remain in effect until full settlement of the aforementioned
case or until superceded by agreement of the parties.

64a
Appendix D

//s//Sadie Moore Stewart

ATTORNEY SIGNATURE//DATE

FLORIDA BAR NR.

[falls ante ROR iy eer es
PLAINTIFFS DESIGNATED
REPRESENTATIVE/DATE

NOTARY
SIGNATURE/DATE

WITNESS ___//s//Tamara D. Tikell

SIGNATURE/DATE

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65a
APPENDIX E——REPORT OF THE REFEREE,
THE FLORIDA BAR VS. SADIE MOORE STEWART
FILED APRIL 27, 1998

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)
THE FLORIDA BAR,
Complainant, Case Nos.
91,263;91,338:91,S40: and
92,515
vs. TFB File Nos. 97-00765-O1B; 97-00617-O1B:
97-00727-01B,97-00190-01B:
97-00505-01B,97-01312-O1B:
and 98-00713-01B
SADIE MOORE STEWART,
Respondent.
/

REPORT OF THE REFEREE
| SUMMARY OF PROCEEDINGS

Pursuant to the undersigned being duly appointed as
referee to conduct disciplinary proceedings herein according
to Rule 3-7.6, Rules of Discipline, the following
proceedings occurred:

On August 25, 1997, The Florida Bar filed its
Complaint in Supreme Court Case No. 91,263 (The Florida
Bar File No. 97-00765-O1B) against Respondent as well as

66a
Appendix E

its Request for Admissions in these proceedings. On
September 3, 1997, The Flonda Bar filed its Complaint in
Supreme Court Case No. 91,338 (The Flonda Bar File
No.97-00797-0 I B) against Respondent as well as its
Request for Admissions in these proceedings. On
November 19, 1997, The Florida Bar filed its Complaint in
Supreme Court Case No. 91,840 (The Florida Bar File No.
97-00617-Ol1B, against Respondent as well as_ its Request
for Admissions in these proceedings. By order dated
February 13, 1998, this Referee consolidated Supreme
Court Case Nos. .91,263;91,338; and 91,8 40. On March
6,1998, The Florida Bar filed its Complaint in Supreme
Court Case Into. 92,515 (The Fiorida Bar File Nos. 97-
0019001B and 97-00505-01B) against Respondent as well
as its Request for Admissions in these proceedings. On
April 15, 1998, in The Florida Bar File No. 97-0132-O1B,
Respondent waived the finding of probable cause and
waived the filing of a formal complaint and consented to
this Referee having jurisdiction to hear this matter. Also on
April 15, 1998, in The Florida Bar File No. 98-0071~—01B,
Respondent waived the finding of probable cause and
waived the filing of a formal complaint and consented to
this Referee having junsdiction to hear this matter. By
motion of the parties, which was ordered by this Referee, all
of the aforementioned cases have been consolidated and are
considered herein. The patties entered into a conditional
guilty plea for consent judgment and joint recommendation
as to discipline which have been submitted to this Referee
and are hereby approved. All of the aforementioned
pleadings and responses thereto and this Report constitute
the record in this case and are forwarded to the Supreme
Court of Florida.

TEES EEE coe

67a

Appendix E

I. FINDINGS OF FACT AND
RECOMMENDATIONS

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
of Florida. The Referee was appointed by the Supreme
Court of Florida to hear the matters involved in Supreme
Court Case Nos. 91,963, 91,3~8, 91.840 and 99,515.
Respondent consented to Referee having jurisdiction over
The Florida Bar File Nos. 97-01,1~-0 LB and 98-007
1~-01B and to consolidation of these cases with Supreme
Court Case Nos. 91,960, 91,3,8, 91,840 and 99,515.

B. Narrative Summaries of Facts.
Case No, 91.263 (TFB File No. 97 00765-0IB)

Complaint of The Florida Bar

Respondent was required to complete 30 hours,
including two hours of Ethics, of Continuing Legal
Education prior to July 31, 1996. On or about August 16,
1996, The Florida Bar, via certified mail, advised
Respondent that she was ineligible to practice law because
of her failure to comply with her Continuing Legal
Education Requirements (CLER). Due to Respondent's
direction to her of Lice staff, Respondent did not pick up the
certified letter from The Florida Bar until September 19,
1996.

68a
Appendix E

On or about September 26,1996, Respondent filed a
motion for extension of time in Michael Clark v. Robert E.
Rubin, Secretary of the Treasury, the Department of
Treasury, and the US. Customs Service, Case No.
5:96CV3361RH, in the United States District Court,
Northern District of Florida, Panama City Division, citing
therein her health as the reason for the motion. At no time
did Respondent advise the United States District Court that
she was ineligible to practice law due to her failure to
comply with CLER.

On or about October 1, 1996, Respondent petitioned
The Florida Bar for removal of CLER delinquency. In so
petitioning, Respondent divas required to fill out a form
petition for removal of CLER delinquency. Respondent
answered under oath all questions on the form petition
except the following:

"5. During my delinquency, I have/have not
(circle one) practiced law in Florida or
rendered advice on matters of Flonda law.”

Respondent was reinstated to membership in good
standing on or about October 3, 1996. Respondent
continued her practice of law during the period that she was
ineligible to practice law in Florida and despite her
knowledge that she was ineligible to do so.

Based upon Respondent's admission, I recommend
that Respondent be found guilty of violating Rule 1-3.4(a)
(Any member who is suspended by reason of failure to
complete continuing legal education requirements shall be
deemed a delinquent member. A delinquent member shall

tice PR ae mE) The
MEE an Re hic A IA a, J

=
ND al a ae

69a
Appendix E

not engage in the practice of law in this state and shall not
be entitled to any privileges and benefits accorded to
members of The Florida Bar in good standing. Any member
suspended for failure to complete continuing legal education
requirements may be reinstated as elsewhere provided in
these rules) of the Rules of Professional Conduct.

Case No. 91,338 (TFB File No. 97-00797-01B
(Complaint of James Hawthorne)

James E. Hawthome filed suit in the United States
District Court, Northern District of Florida, Pensacola
Division, alleging racial discrimination and retaliatory
conduct by the University of West Florida. After the
University of West Florida filed a motion to dismiss, Mr.
Hawthome hired Respondent to represent him in this
lawsuit.

On or about August 93, 1995, Respondent filed a
notice of appearance in the case. Pursuant to an agreement
of counsel and a pre-trial order, certain disclosures as
required by Rule 26 ( N) of the Federal Rules of Civil
Procedure (regarding witness lists, inter alia) were due to be
filed on December 90, 1995. On or about December ‘9
1995, the University of West Florida filed its Rule 96 (A)
disclosure. On or about February 0,, 1996, the University of
West Florida filed a motion to compel the filing of the
Plaintiffs Rule 26 (at) disclosure. By order dated March 7,
1996, the court granted the University of West Florida's
motion to compel arid ordered that Plaintiffs Rule 96 (A)
disclosure should be filed by March 14, 1996. The court
also awarded attorneys fees in the amount of 563 to the

70a
Appendix E

University of West Florida which fees were to be paid
within 10 days of the court's order.

Respondent filed the Plaintiffs Rule 96 (ok) disclosure
on March 1A, 1996. The University of West Florida filed a
motion for summary judgment in April 1996, to which
Respondent responded. By order dated October 9~, 1996,
the court granted summary judgment unto the University of
West Florida. Respondent forwarded a copy of the order
granting summary judgment to Mr. Hawthorne. Respondent
did not clearly advise Mr. Hawthorne that he had 30 days
from October 99, 1996 within which to file a notice of
appeal of the order granting summary judgment. On
Wednesday, November 90, 1996, Mr. Hawthorne contacted
Respondent to inquire as to whether she aids going to file an
appeal of the order granting summary judgment. Respondent
appeared to De unaware that the time for filing the appeal
ran on November 91, 1996. Apparently Air. Hawthorne was
under the impression that the time to appeal ran on
November 79, 1996; nonetheless, on November ~ 1, 1996,
he filed a notice of appeal Pro Se. Respondent did not
clearly establish with her client the issue of whether Mr.
Hawthorne wanted to appeal the summary judgment and
whether Respondent would file that notice of appeal for Mr.
Hawthorne.

Respondent agreed to accept the representation of Mr.
Hawthorne for a $ 500 retainer plus a fee contingent upon
the outcome of the case. Respondent did not enter into a
written contingency fee contract with Mr. Hawthome nor
did she provide Mr. Hawthorne with a copy of the statement
of clients nghts.

7la
Appendix E

Based upon Respondent's admission, | recommend that
Respondent be found guilty of violating Rules 4-1.3 (A
lawyer shall act with reasonable diligence and promptness
in representing a client), 4-14(b) (Duty to Explain Matters
to Client. A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation), 4-3.2 (A lawyer
shall make reasonable efforts to expedite litigation
consistent with the interests of the client.), and 4-1.5(f)
(Contingent Fees. As to contingent fees: (1) A fee may be
contingent on the outcome of the matter for which the
service is rendered, except in a matter in which a contingent
fee is prohibited by paragraph (f)\3) or by law. A contingent
fee agreement shall be in writing and shall state the method
by which the fee is to be determined, including the
percentage or percentages that shall accrue to the lawyer in
the event of settlement, trial, or appeal, litigation and other
expenses to be deducted from the recovery, and whether
such expenses are to be deducted before or after the
contingent fee is calculated. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client
with a written statement stating the outcome of the matter
and, if there is a recovery, showing the remittance to the
client and the method of its determination: (2) Every lawyer
who accepts a retainer or enters into an agreement, express
or implied, for compensation for services rendered or to be
rendered in any action, claim, or proceeding whereby the
lawyer's compensation is to be dependent or contingent in
whole or in part upon the successful prosecution or
settlement thereof shall do so only where such fee
arrangement is reduced to a written contract, signed by the
client, and by a lawyer for the lawyer or for the law firm
representing the client. No lawyer or firm may participate in

72a
Appendix E

the fee without the consent of the client in writing Each
participating lawyer or law firm shall sign the contract with
the client and shall agree to assume joint legal responsibility
to the client for the performance of the services in question
as if each were partners of the other lawyer or law firm
involved. The client shall be furnished with a copy of the
signed contract and any subsequent notices or consents. All
provisions of this rule shall apply to such fee contracts; (a)
A lawyer who enters into an arrangement for, charges, or
collects any fee in an action or claim for personal injury or
for property damages or for death or loss of services
resulting from personal injuries based upon tortious conduct
of another, including products liability claims, whereby the
compensation is to be dependent or contingent in whole or
in part upon the successful prosecution or settlement thereof
shall do so only under the following requirements: (A) The
contract shall contain the following provisions: (i) “The
undersigned client has, before signing this contract, received
and read the statement of client's mghts and understands
each of the nghts set forth therein. The undersigned client
has signed the statement and received a signed copy to refer
to while being represented by the undersigned attorney(s)."
(ii) "This contract may be cancelled by written notification
to the attorney at any time within 3 business days of the date
the contract was signed, as shown below, and if cancelled
the client shall not be obligated to pay any fees to the
attorney for the work performed during that time. If the
attorney has advanced funds to others in representation of
the client, the attorney is entitled to be reimbursed for such
amounts as the attorney has reasonably advanced on behalf
of the client; (C) Before a lawyer enters into a contingent
fee contract for representation of a client in a matter set
forth in this rule, the lawyer shall provide the client with a

73a

Appendix E

copy of the statement of client’s rights and shall afford the
client a full and complete opportunity to understand each of
the rights as set forth therein. A copy of the statement,
signed by both the client and the lawyer, shall be given to
the client to retain and the lawyer shall keep a copy in the
client's file. The statement shall be retained by the lawyer
with the written fee contract and closing statement under the
same conditions and requirements as subdivision (fS).) of
the Rules of Professional Conduct.

Case No. 91,840. TFB File No. 97-00617-OIB
(Complaint of Gillis Thomas))

In approximately November 1996, Respondent was
hired to represent Gillis Thomas in an employment
discrimination matter against J.C. Penney, Inc. A hearing
was scheduled before the Honorable Lacy Collier, U.S.
District Court, Northern District of Florida, Pensacola
Division, for June 14, 1996 at 10:00 a.m. Respondent failed
to appear at the hearing before Judge Collier. Respondent
did attempt to make a telephone appearance before Judge
Collier in this matter, but such appearance was denied. As a
result of the June 11, 1996 hearing, certain costs were
assessed against Mr. Thomas, the Plaintiff.

After Mr. Thomas filed a complaint with The Florida
Bar on January 17, 1997, Respondent wrote Mr. Thomas
and advised that she was terminating the representation and
cited therein certain attorney/client privileged, and therefore
confidential, information relative to Mr. Thomas' case
against J.C. Penney. Respondent provided J.C. Penney’s
counsel with a copy of her attorney/client privileged
communication with Mr. Thomas which disclosed

74a
Appendix E

information detrimental to Mr. Thomas’ action against J.C.
Penney.

Based upon Respondent's admission, | recommend
that Respondent be found guilty of violating Rules 4-1.6(a!
(Confidentiality of information (a) Consent Required to
Reveal Information. A lawyer shall not reveal information
relating to representation of a client except as stated in
subdivisions (b), (c), and (d), unless the client consents after
disclosure to the client and 4-3,4(c ) (A lawyer shall not
knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion
that no valid obligation exists) of the Rules of Professional
Conduct.

Case No. 92.515(TFB File Nos. 97-00190-01B and
97-00505-0

(Complaints of Sammy Barnes, Ray Dunklin, and James
Cox and Gary Scott)

Respondent was hired, as successor counsel, by nine
people to represent them in a racial discrimination case
arising out of their employment by the U.S. Navy, Coastal
Systems Station, Panama City, Florida. The representation
was intended to become a class action matter.

On or about November 27, 1995, Respondent entered
into a modified contingency fee agreement, signed by three
of the Plaintiffs, Sammy Barnes, Ray Dunklin, and James
Cox, in which the Respondent was paid a $12,500.00
retainer. Costs of the litigation were to be paid by the
clients.

BRS Stan z 5 ‘ POM We ee
PORE Makiahinw er Nes oR Ma Seis ude SU Aaa

75a
Appendix E

At the time the clients hired Respondent, they inquired
about Respondent’s experience in handling United States
Code Title VII discrimination cases and class action
matters. Respondent advised her clients that she was
experienced and could handle their legal matter. At no time
did the Respondent advise the clients that her experience in
United States Code Title VII actions had been limited to
administrative actions before the Equal Employment
Opportunity Commission (EEOC). At no time prior to
being hired did Respondent advise her clients that she had
never before participated in a class action matter.

Beginning in the spring of 1996 and for approximately
three months, Respondent was out of her office a significant
amount of time because of a family member’s illness.
Respondent left her paralegal, Tamara Tikell, in charge of
her law practice. Ms. Tikell, as Respondent’s agent,
requested $1,000 from the clients in April 1996 to be used
to pay costs of the litigation. The clients delivered a $1,000
check to Respondent’s office in April 1996. The clients
repeatedly requested a receipt for the $1,000 from
Respondent’s office, to no avail. The clients requested an
accounting for the $1,000 which Respondent did not
provide.

In response to the instant inquiry/complaint (TFB File
No. 97-00505-01B) on January 3, 1997, Respondent
advised The Florida Bar that “[t}he money in question was
used to pay for transcripts of the Plaintiff's depositions and
miscellaneous expenses.” Respondent’s response
references a court reporter bill for $945.25. Because of the
allegations regarding the $1,000 court deposit, the First
Judicial Circuit Grievance Committee “B” requested an

76a
Appendix E

audit of Respondent’s trust account for the time period
January 1, 1995 through May 31, 1997. The audit reveals,
and Respondent confirms, that the $1,000 check for costs
was not deposited into Respondent’s trust account. The
$1,000 was not applied towards the clients’ cost of
litigation. The $1,000 was deposited into Respondent’s
operating account. According to Respondent, Tamara
Tikell removed the $1,000 from Respondent’s operating
account immediately after it was deposited therein.

Respondent became aware of the discrepancy over the
$1,000 costs in approximately May 1996. Respondent
states that sometime after October, 1996, using her own
funds, she paid a court reporter $945.25 to cover the costs
of depositions related to this matter. Respondent has not
accounted to the clients for the balance of $54.75.

The trust account audit, unable to be completed due to
lack of records, revealed the following deficiencies:

A. Respondent did not maintain the following
records:

-Original or duplicate deposit records, indicating (a)
date and source of the deposit and (b) client and/or

matter, for the months of July 1995 through August

1996;

~Onginal cancelled checks for July 1995 through
August 1996;

-Case receipts and disbursements journal;

77a
Appendix E
-Client ledger accounts:
-Bank reconciliations;
-Monthly comparisons;
-Annual listing of trust obligations:

B. Respondent’s trust account is not set up as an
IOTA (Interest on Trust Accounts) account;

C. The checks do not reflect Ms. Stewart’s name, nor
do the checks reflect that the account is a trust accouni.

D. A shortage of funds existed in the trust account.

Based upon Respondent’s admission, I recommend
that Respondent be found guilty of violating Rules 4-1.4(b)
(Duty to Explain Matters to Client. A lawyer shall explain a
matter to the extent reasonable necessary to permit the
client to make informed decisions regarding the
representation), 4-1.15(a) (Clients’ and Third Party Funds to
be Held in Trust. A lawyer shall hold in trust, separate from
the lawyer’s own property, funds and property of clients or
third persons that are in a lawyer’s possession in connection
with representation. All funds, including advances for costs
and expenses, shall be kept in a separate account maintained
in the state where the lawyer’s office is situated or
elsewhere with the consent of the client or third person,
provided that funds may be separately held and maintained
other than in a bank account if the lawyer received written
permission from the client to do so and provided that such
written permission is received prior to maintaining the funds

78a
Appendix E

other than in a separate bank account. In no event may the
lawyer commingle the client’s funds with those of the
lawyer or those of the lawyer’s law firm. Other property
shall be identified as such and appropnately safeguarded.
Complete records of such account funds and other property,
including client funds not maintained in a separate bank
account, shall be kept by the lawyer and shall be preserved
for a period of 6 years after termination of the
representation), 4-1.15(b) (Notice of Receipt of Trust
Funds; Delivery; Accounting. Upon receiving funds or
other property in which a client or third person has an
interest, a lawyer shall promptly notify the client of third
person. Except as stated in this rule or otherwise permitted
by law or by agreement with the client, a lawyer shall
promptly deliver to the client or third person any funds or
other property that the client or third person is entitled to
receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property)
of the Rules of Professional Conduct, and 5-1.1(a) (Nature
of Money or Property Entrusted to Attorney. Money or
other property entrusted to an attomney for a specific
purpose, including advances for costs and expenses, is held
in trust and must be applied only to that purpose. Money
and other property of clients coming into the hands of an
attorney are not subject to counterclaim or setoff for
attommey’s fees, and a refusal to account for and deliver over
such property upon demand shall be deemed a conversion.
This is not to preclude the retention of money or other
property upon which the lawyer has a valid lien for services
or to preclude the payment of agreed fees from the proceeds
of transactions or collection. Controversies as to the
amount of fees are not grounds for disciplinary proceeding
unless the amount demanded in clearly excessive,

79a
Appendix E

extortionate, or fraudulent. In a controversy alleging a
clearly excessive, extortionate, or fraudulent fee, announced
willingness of an attorney to submit a dispute as to the
amount of a fee to a competent tribunal for determination
may be considered in any determination as to intent or in
mitigation of discipline; provided, such willingness shall not
preclude admission of any other relevant admissible
evidence relating to such controversy, including evidence as
to the withholding of funds or property of the client, or to
other injury to the client occasioned by such controversy), 5-
1.1(b) (Trust Accounts Required. Any bank or Savings and
loan association account maintained by a member of The
Florida Bar to comply with rule 4-1.15, Rules of
Professional Conduct, is and shall be clearly labeled and
designated as a trust account. Any safe deposit box used in
connection with the practice of law in Florida maintained by
a member of The Florida Bar to comply with rule 4-1.15
shall be located in this state unless the client otherwise
consents in writing. A member of The Florida Bar shall
advise any institution in which such deposit box is located
that it may include property of clients), 5-1. l(c) (Trust
Accounts as Official Records. A member of The Florida
Bar shall preserve or cause to be preserved the records of
all bank and savings and loan association accounts or other
records pertaining to the funds or property of a client or a
third party maintained in compliance with rule 4-1.15 for a
period of not less than 6 years subsequent to the final
conclusion of the representation of a client relative to such
funds or property. Such records shall include checkbooks,
cancelled checks, check stubs, vouchers, ledgers and
journals, closing statements, accounting or other statements
of disbursements rendered to chents or third parties with
regard to trust funds, or similar equivalent records clearly

80a
Appendix E

and expressly reflecting the date, amount, source, and
reason for all receipts, withdrawals, deliveries, and
disbursements of the funds or property of a client or third
party. Such records shall be kept pursuant to these rules as
a specific prerequisite to the right to receive, deliver, and
disburse funds or property of a client or third party and to
have a public aspect relating to the protection of clients and
to fitness of a member of The Florida Bar to practice law.
In any instance of an alleged violation by a member of The
Florida Bar of this rule or of any of the rules of Professional
Conduct, such records insofar as they may relate in any way
to the transaction, occurrence, or client in questions shall be
produced by the member of The Florida Bar for inspection,
audit, and copying by a designated representative of The
Florida Bar upon the direction of this court, a grievance
committee, the board of governors if acting pursuant to rule
3-7.5(b), or a referee. Such records or copies thereof shall
be admissible in evidence in any proceeding under this rule,
provided notice of such intended use shall be given to any
client involved, if practicable, unless such client is already
aware of such intended use, and upon good cause shown by
such client the admission of the same shal! be under such
conditions as shall be reasonably calculated thereafter to
protect the confidences of such client in the event the
proceedings otherwise become public records. Permissible
means of protection shall not prejudice the respondent and
may include but are not limited to excision, in camera
production, retention in sealed envelopes, or similar
devices. Failure to maintain such records or to produce
them upon such direction shall constitute ground for
disciplinary action under this rule without regard to any
other matter. The cost of any audit or investigation
necessitated by such failure may be taxed against a

————

8la
Appendix E

respondent), 5-1.1(4) (Trust Accounting. Minimum trust
accounting records shall be maintained and minimum trust
accounting procedures must be followed by all attorneys
practicing in Florida who receive or disburse trust money or
property), 5-1.1(e)2) (Interest on Trust Accounts(IOTA)
Program. Required participation. All nominal or short-term
funds belonging to clients or third persons that are placed in
trust with any member of The Florida Bar practicing from an
office or other business location within the State of Florida
shall be deposited into one or more interest-banking trust
checking accounts in an eligible financial institution for the
benefit of the Foundation, except as provided in rule 4-1.15
with respect to funds maintained other than in a bank
account, or as provided in rule 5-1.2(a). Only trust funds
that are nominal or short term shall be deposited into an
IOTA account. The member shall certify annually, in
writing, that the member is in compliance with, or is exempt
from, the provisions of this rule), 5-1.2(b) (Minimum Trust
Accounting Records. The following are the minimum trust
accounting records that shall be maintained: (1) A separate
bank account or accounts and, if utilized, a separate savings
and loan association account or accounts. Such accounts
shall be located in the State of Florida unless the client
otherwise directs, in writing, or unless the financial
institution in which the funds are maintained voluntarily
submits to the jurisdiction of the Supreme Court of Florida.
Such voluntary submission to the jurisdiction of the
Supreme Court of Florida shall be on the form prescribed by
the board of governors of The Florida Bar. The account or
accounts shall be in the name of the lawyer or law firm and
clearly labeled and designed as a “trust account.” (2)
Original or duplicate deposit slips and, in the case of
currency or coin, an additional case receipts book, clearly

82a
Appendix E

identifying: (A) the date and source of all trust funds |
received, and (B) the client or matter for which the funds
were received. (3) Original canceled checks, all of which
must be numbered consecutively, or, if the financial
institution wherein the trust account is maintained doc not
return the original checks, copies thereof, as provided by the
financial institution. (4) Other documentary support for all
disbursements and transfers from the trust account. (5) A
separate cash receipts and disbursements journal, including
columns for receipts, disbursements, transfers, and the
account balance, and contained at least: (A) the
identification of the client or matter for which the funds
were received, disbursed, or transferred; (B) the date on
which all trust funds were received, disbursed, or
transferred; (C) the check number for all disbursements, and
(D) the reason for which all trust funds were received,
disbursed, or transferred. (6) A separate file or ledger with
an individual card or page for each client or matter, showing
all individual receipts, disbursements, or transfers and any
unexpended balance, and containing: (A) the identification
of the client or matter for which trust funds were received,
disbursed, or transferred; (B) the date on which all trust
funds were received, disbursed, or transferred; (C) the
check number for all disbursements; and (D) the reason for
which all trust funds were received, disbursed, or
transferred. (7) All bank or savings and loan association
statements for all trust accounts), and 5-1.2(c) (Minimum
Trust Accounting Procedures. The minimum trust
accounting procedures that shall be followed by all
attorneys practicing in Florida who receive or disburse trust
money or property are as follows: (1) The lawyer shall
cause to be made monthly: (A) reconciliations of all trust

83a
Appendix E

bank or savings and loan association accounts, disclosing
the balance per bank, deposits in transit, outstanding checks
identified by date and check number, and nay other items
necessary to reconcile the balance per bank with the balance
per the checkbook and the cash receipts and disbursements
journal; and (B) a comparison between the total of the
reconciled balances of all trust accounts and the total of the
trust ledger cards or pages, together with specific
descriptions of any differences between the 2 totals and
reasons thereof. (2) At least annually, the lawyer shall
prepare a detailed listing identifying the balance of the
unexpended trust money held for each client or matter. (3)
The above reconciliations, comparisons, and listing shall be
retained for at least 6 years. (4) The lawyer or law firm
shall authorize and request any bank or savings and loan
associawon where the lawyer is a signatory on a trust
account to notice Staff Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, Florida 32399-2300, in
the event any trust check is returned due to insufficient
funds or uncollected funds, absent bank error. (5) The
lawyer shall file with The Florida Bar between June | and
August 15 of each year a trust accounting certificate
showing compliance with these rules on a form approved by
the board of governors of the Rules Regulating Trust
Accounts of the Florida Bar.

TFB No. 97-01312-01B
(Complaint of Shirley Minter-Smith)

Respondent waiver a formal finding of probable cause
and the filing of a formal complaint with respect to TFB File
No. 97-01312-01B.

84a

Appendix E
On August 22, 1996, Respondent was retained by Ms.
Shirley Minter-Smith to serve as attorney ad litem for her
minor son’s emancipation proceeding.

On or about September 11, 1996, Ms. Minter-Smith’s
son was arrested for aggravated battery and robbery and
Respondent was retained to handle his criminal case. Over
the next 4-6 weeks, Ms. Minter-Smith was unable to
communicate with Respondent to obtain information about
the status of her son’s criminal case.

On or about October 31, 1996, ms. Minter-Smith
retained another attorney to handle her son’s criminal
matter.

Respondent did not proceed with the emancipation
proceeding while the criminal charges were pending. It
appears that Ms. Minter-Smith wanted to go forward with
the emancipation proceeding notwithstanding the criminal
proceedings, yet the communication between Respondent
and Ms. Minter-Smith on this issue is not clear.

Based upon Respondent’s admission, I recommend
that Respondent be found guilty of violating Rule 4-1.4(a)
(A lawyer shall keep a client reasonable informed about the
status of a matter and promptly comply with reasonable
requests for information) of the Rules of Professional
Conduct.

85a

Appendix E

il 98-007 13-01B\
(Complaint of The Florida Bar)

Respondent has waived a formal finding of probable
cause and the filing of a formal complaint with respect to
TFB File No. 98-00713-01B.

Respondent represented the Plaintiff Wanda Rogers in
a federal action. The defendant, Marvin Runyon, the U.S.
Postmaster, filed a motion for summary judgment. At the
hearing on the motion for summary judgment, Respondent
appeared by telephone without leave of court while the —
defendant’s counsel was required to travel a significant
distance to attend this hearing. Respondent conceded that
summary judgment was appropriate. The defendant moved
for a judgment of costs against Respondent based upon the
above and Respondent did not respond, despite a
requirement to do so under the court’s rules. By order
dated December 2, 1997, the United States District Court
ordered Respondent to pay $2,260 to the defendant for her
actions herein.

Respondent did not respond to The Florida Bar’s
requests for information about this matter violating Rules 4-
3.4(c) (A lawyer shall not knowingly disobey an obligation
under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists) and 4-
8.4(g) (A lawyer shall not fail to respond, in writing, to any
inquiry by a disciplinary agency when such agency is
conducting an investigation into the lawyer’s conduct) of the
Rules of Professional Conduct.

86a
Appendix E

Ill. RECOMMENDATION AS TO DISCIPLINARY
MEASURE TO BE APPLIED

I recommend that Respondent be found guilty of
misconduct justifying disciplinary measures, and in
accordance with the terms of the consent judgment that she
be disciplined by:

A. Suspension from the practice of law for ninety-one(91)
days, which requires proof of rehabilitation.

B. Payment of The Flonda Bar’s costs in these
proceedings.

IV. PERSONAL HISTORY PAST DISCIPLINARY

RECORD AND AGGRAVATING AND
MITIGATING FACTORS

Prior to recommending discipline pursuant to Rule
3-7.6(k\(1), I considered the following:

A. Personal History of Respondent:

Age: 47 years old

Date admitted to the Bar: January 29, 1993

87a
Appendix E
B. Aggravating Factors:

i. 9.22(a) Prior Discipline: The Florida Bar File No.
96-00126-01B (Complaint of Eugene M. Bemstein) -
Respondent’s neglect and lack of communication in an
EEOC matter resulted in an admonishment before the
grievance committee in 1996.

Supreme Court Case No. 90,013; The Florida Bar File
No. 96-00958-01B (Complaint of Jonathan McNabb) -
Respondent’s neglect and incompetent representation in a
criminal matter resulted in a public reprimand in 1997.

Respondent is currently on an indefinite suspension
for failure to comply with a trust account subpoena, as
outlined in the consent judgment. Supreme Court Case No.
91,803, The Florida Bar File No. 98-00123-01B.

li. 9.22(c) - Pattern of misconduct; and

iii. 9.22(d) - Multiple offenses.

C. Mitigating Factors:

i. 9.32(b) - Absence of dishonest or selfish motive;

li. 9.32(c) - Personal or emotional problems - During
1996, Respondent was coping with the terminal
illness and subsequent of one of her sisters, for

88a
Appendix E

whom she was a caregiver. Further, Respondent was
coping with the commission of a violent crime
against her other sister. °

These events took Respondent out of her law office
for a period of time and diverted her attention away from
her law practice.

ili. 9.32(f) - Inexperience in the practice of law -
Respondent was admitted to the practice of law on
January 29, 1993 and most of the events occurred
between late 1995 and 1997;

iv. 9.32(e) - Full and free disclosure to disciplinary
board or cooperative attitude towards proceedings
Respondent has cooperated with The Florida Bar
in these proceedings and has been candid with
The Florida Bar regarding her role and
responsibility for these matters. Such cooperation
and candor is a major consideration by the Florida
Bar in entering into this consent judgment.
Respondent contends that where she was
nonresponsive, she had nothing to add to the
proceedings;

v. 9.32(h) - Physical or mental disability -
Respondent suffers from Lupus which was
diagnosed in 1997. During the time periods
involved in these matters, Respondent was
suffering from the symptoms of Lupus, which
were undiagnosed. Respondent is currently
being treated for Lupus.

89a
Appendix E

vi. 9.32(1) - Remorse - Respondent’s intent
was to help these clients and she is remorseful
that her actions or inactions resulted in harm to
the clients and the public. Respondent recognizes
that her major weakness stems from lack of office
management skills and that she needs to associate
herself with others who are better equipped at

office management matters.
T RIN
WHICH COSTS SHOULD BE TAXED
I find the following costs were reasonably incurred by
The Florida Bar:
TFB File Nos. 97-00727-01B, 97-007654-01B, and
97-00617-01B
Administrative Costs pursuant $
Rule 3-7.6(0)(1), Rules of Discipline 750.00
Court Reporter Fees and Transcripts 305.50
Bar Counsel Travel Expenses and 242.57
Witness Travel Expenses 25.33
Subtotal $1,323.40

TFB File Nos. 97-00190-01B and 97-00505-01B

Administrative Costs pursuant Rule $

3-7.6(0(1), Rules of Discipline 750.00
Court Reporter Fees and Transcripts 426.00
Grievance Committee Investigative

Expenses 175.96
Bar Counsel Travel Expenses and 133.25

Auditor Expenses (Travel and Audit) 446.58

90a

Appendix E
Witness Travel Expenses 73.30
and Copies 24.00
Subtotal $2,029.09

TEB File No. 97-01312-01B

Court Reporter Fees and Transcripts $ 265.00

Bar Counsel Travel Expenses and 118.41
Witness Travel Expenses 387.25

Subtotal $ 770.66

TEB File No. 98-00713-01B

No costs associated with file.
TOTAL $4,123.15

It is recommended that such costs be charged to Respondent
and that interest at the statutory rate shall accrue and be
payable beginning 30 days after the judgment in this case
becomes final unless a waiver is granted by the Board of
Governors of The Florida Bar.

Dated this 27 day of Apnil, 1998.

“s/ cf
William L. Wright, Circuit Judge Referee
Jackson County Courthouse
Post Office Box 852
Marianna, Florida 32447-0852
(850)482-9078

src i a a ana reat

9la
Appendix E

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing
Report of Referee has been mailed by regular U.S. Mail to
SID J. WHITE, Clerk of the Supreme Court of Florida,
Supreme Court Building, Tallahassee, Florida 32301, and
that copies were mailed by regular U.S. Mail to JOHN
ANTHONY BOGGS, Staff Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, Florida 32399-2300;
LOIS B. LEPP, Bar Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, Florida 32399-2300; and
SADIE MOORE STEWART, Respondent, at her record
Bar address of 986 Caledonia Road, Cleveland Heights,
Ohio 44112, on this 27 day of Apmil, 1998.

“*¢/ ”

William L. Wright, Referee

92a

APPENDIX F——PLAINTIFFS-APPELLANT’S
FOLA/PRIVACY ACT REQUEST TO THE AGENCY
DATED MAY 22, 1995

From: See Enclosure (1) Schedule of Depositions

To: Freedom of Information Act (FOIA) Officer,
Human Resources Office, 368 South Ave.,
Pensacola, FL 32508-5214

Subj: FOLA/PRIVACY ACT REQUEST

1. This is a request under the FOIA, 5 U.S.C. Section 552
and the Privacy Act, 5 U.S.C. Section 552a. The United
States Attorney for the Northern District of Florida has
notified us that he will take depositions in the case of
Abraham Johnson, et al v. John H. Dalton, civil Action
Number 94-30165-RV. Enclosure (1) lists the time and
date of these to be deposed. The US Attorney’s Office has
requested that all records and information related to this
action be brought with us at the time we are to be deposed.

2. We understand that the standard time for answering
FOIA requests is 10 days; however, the below requested
information is needed so that we can fully comply with the
US Attomey’s proposed depositions of us. Thus, we
request that you provide this information expeditiously to
the addresses listed in item 4, and all documents,
memoranda, notes, reports, diaries, things and computer
disks in your possess or under your control related in any
way to the parties to this civil action including, but not
limited to, the following:

a. Any personnel files, wherever maintained;
b. Any departmental files, wherever maintained;
c. Any and all EEO complaints, wherever maintained;

93a
Appendix F

d. Any and all MSPB complaints, wherever

maintained;

e. Any and all umion grievances, wherever

maintained;

f. Any and all offers of employment; applications for
employment; terms, conditions, and benefits of employment;
employment contracts, if any, and/or amendments thereto;
resumes or Forms SF-171; and insurance related documents.

g. Any and all job assignments, job requirements, job

title or job status, benefits statements, rates of
pay, and evaluations of job performance;

h. Any and all offers of employment; applications for
employment; terms, conditions, and benefits of employment;
employment contracts, if any, and/or amendments thereto;
resumes or Forms SF-171; and insurance related documents;

i. Any and all documents wherever maintained,

including but not limited to, notes, papers, transcripts, files,

diaries, notebooks, computer disks, video tapes, recording
an/or writings which relate to, pertain to, refer to, or support
any or all of the allegations in the complaint in this matter.

3. We request a waiver of all fees for this request. We are
the Plaintiffs in civil Action #94-30165-RV and we are
seeking information to assist us in fully answering the
United States Attorney when he deposes us about the above
referenced civil action.

4. If you require any assistance in expediting this request
or have any questions, the point of contact for this request is
Darlene D. Sharpe, she can be reached at 452-3692. Thank
you for your consideration of this request.

94a

Appendix F

The requesters and addresses are as follows:

Thelma Roby

200 E. Burgess Rd.,
Apt. #48B
Pensacola, FL 32503

Eugene Lovelace

3410 W. Hernandez St

Pensacola, FL 32503

Frances Brown

P. QO. Box 125
Pensacola, FL 32591
-0125

James R. Welcome
502 N. Green St.
Pensacola, FL 32505

Fred Bass
75 South Madison
Pensacola, FL 32534

Robert Brooks
712 W. Gregory St.
Pensacola, FL 32501

Mary Gibson
309 Gamarra Rd
Pensacola, FL 32503

Jerald Lacey
4552 Independence Ave.
Pensacola, FL 32505

Darlene D. Sharpe
8800 Fowler Ave., Apt.
#B203

Pensacola, FL 32534

Ametha Welcome
502 N. Green St.
Pensacola, FL 32505

April Posey
6672 Bellview Pines Place
Pensacola, FL 32526

Vera Evans
940 N. “C” St
Pensacola, FL 32501

Sylvia Bell
910 Winston Ave
Pensacola, FL 32507

Willie Carson
To be provided

Tommie Ware
1301 E. Leonard St
Pensacola, FL 32501

Calvin Robinson
318 E. Garfield Dr.
Pensacola, FL 32505

Willie Remer Young
1006 Texar Dr
Pensacola, FL 32503-
3643

Abraham Johnson

3300 Rollingbrook Rd.,

Apt. 1017
Daytown, TX 77521

Marilyn Alexander
6444 Memphis Ave
Pensacola, FL 32506

Robert Broughton
8317 Ranger Dr
Pensacola, FL 32534

Gilda James
4001 Shorewood Dr
Pensacola, FL 32507

95a

Appendix F

Van G. Nelson
2490 Bellview Pines Way
Pensacola, FL 32526

Earnest Standberry (Retired)
8719 Orange Ave
Pensacola, FL 32534

Robert Taylor
6492 Memphis Ave.
Pensacola, FL 32506

Fred Hicks
744 Boxwood Dr
Pensacola, FL 32503

J.W. Bridges
2208 Inverness Dr
Pensacola, FL 32503

Pat Frelix

C/O Thelma Roby
200 E. Burgess Rd.,
Apt 48B

Pensacola, FL 32503

Eugene Ward
2301 St. Andrews Dr
Cantonment, FL 32533

Lorenzo Chatman
395 N. “T” St
Pensacola, FL 32505

Jennifer Jones-Butler
4519 Chantilly Way
Pensacola, FL 32505

Velma Jones
1956 Gary Circle
Pensacola, FL 32505

Debrah Burgess
630 W. Lee St
Pensacola, FL 32501

Lamar Jackson
P. O. Box 1605]
Pensacola, FL 32507

Larry Goggans
2031 Brenda Ave
Pensacola, FL 32506

Roscoe Kidd
8295 Ranger Dr
Pensacola, FL 32534

James Stanten
6410 Birkhead Dr
Pensacola, FL 32506

96a

Appendix F

Lillian Smith
1251 Mahogany Mills Apt
Pensacola, FL 32507

Robert Cannon
3161 Torres Ave
Pensacola, FL 32503

Victor Barnes
1999 Detroit Blvd
Pensacola, FL 32534

Margaret McQueen
P. O. Box 474
Cantonment, FL 32533

Leslie Johnson
903 W. Hatton St
Pensacola, FL 32501

Kathy Floyd
611 Washington St
Cantonment, FL 32533

Wilbur Henderson

C/O Thelma Roby

200 E. Burgess Rd, Apt 48B
Pensacola, FL 32503

Joseph Wright
125 W. Highland Dr
Pensacola, FL 32503

James Thompson
5.N. 9" Ave
Pensacola, FL 32503

Margaret Miles
4495 Landes Dr
Pensacola, FL 32505

97a
Appendix F
James Royster (Retired)

1105 W. Leonard St
Pensacola, FL 32501

98a

APPENDIX G——FOIA OFFICER’S RESPONSE TO
PLAINTIFFS-APPELLANT’S REQUEST SIGNED
DATED JUNE 2, 1995"

5720
Code 09A1
Jun 02 1995
Ms. Darlene D. Sharpe
8800 Fowler Avenue
Apartment B203

Pensacola, FL 32534

Dear Ms. Sharpe:

This is in response to the Freedom of Information/Privacy
Act request which you hand delivered to the Human
Resources Office Pensacola on May 22, 1995. You
requested documents and files pertaining to 47 different
individuals. You further indicated that the documents were
required to respond to a Notice of Video Tape Deposition
issued by the U. S. Attomey in the case of Abraham
Johnson Jr., et al v. John H. Dalton. That Notice required
the deponent to bring certain documents “in his or her
possession or under his or her control.” Since you have
indicated the requested records are required to respond to
the U.S. Attorney, be advised that the Human Resources
Office has turned the files over to the cognizant Assistant
United States Attorney. To facilitate your expeditious
access to these records, you should contact your attorney so
that he can arrange for the necessary discovery notices to be
issued. Point of contact for the Navy in the U.S. Attorney’s
office is Mr. Anthony Crouse and he may be reached at
434-3251.

Sincerely.
“e/ ”

M. D. MILLAS
Deputy Director, Acting

99a
APPENDIX H——THE SUPREME COURT OF
FLORIDA DISCIPLINES SADIE MOORE
STEWART RELEASED JULY 2, 1998

Discipline Release Page | of 9

PUBLIC & MEDIA INFORMATION

Public and Media Information
Discipline Releases
Discipline Release: July 2, 1998

FOR IMMEDIATE RELEASE
July 2, 1998

CONTACT: Toyca D. Williams
The Florida Bar

TELEPHONE: 850/561-5666

FROM THE FLORIDA BAR

SUPREME COURT DISCIPLINES 34
ATTORNEYS

TALLAHASSEE, July 2 — The Florida Supreme Court in
recent court orders suspended 18 attorneys, disbarred three,
reprimanded five, accepted the resignation of seven
attorneys and placed one on probation. The Supreme Court

of Florida issued these orders following action by The
Florida Bar.

The following lawyers are disciplined:

Raymond A. Argyros, 511 Paula Dr., South, Dunedin,
automatically suspended from practicing law in

100a
Appendix H

Florida,effective immediately following a May | court
order. Argyros, found guilty of perjury, was sentenced to
five years probation.

Andrew Baron, 1803 E. Kaley St., Orlando,
reprimanded for professional misconduct following a May
14 court order. Baron ran an advertisement in the telephone
book that failed to meet Bar standards. The Standing
Committee on Advertising had advised Baron earlier that
the same advertisement did not meet specific guidelines. He
also failed to respond to Bar investigative inquiries. He is
placed on probation for one year.

Discipline Release Page 7 of 9

Kenneth Robert Schroff, 346 Biake Ave., Orange Park,
resigned in lieu of disciplinary proceedings, with leave to
seek readmission after years, effective 30 days following a
May 7 court order. In several instances, Schroff allegedly
failed to competently represent his clients and allegedly
failed to act with diligence and promptness. He agreed to
cooperate with any Client Security Fund claims related to
his clients.

Lloyd Raymond Schwed, 19055 S.E. Coral Reef Lane,
Jupiter, suspended from practicing law in Florida for two
years, retroactive to Sept. 12, 1996, following a March 19
court order. Schwed pleaded guilty to one count of
obstructing proceedings before the Securities Exchange
Commission. He was sentenced to five months in prison
and five months home confinement. Within a couple days

10la

Appendix H

after his arrest, Schwed filed a voluntary petition with The
Florida Bar to suspend his license.

Sadie Moore Stewart, 986 Caledonia Ave., Cleveland
Heights, Ohio, suspended from practicing law in Florida
for 91 days, effective immediately following a May 14 court
order. In several unrelated cases, Stewart violated rules
regulating the Bar. She practiced law while suspended and
failed to diligently represent her clients, explain matters
fully to clients, meet contingency fee guidelines comply
with many other Bar rules.

Ernest J. Szarwark, 503 Lynnwood Blvd., Nashville,
Tenn., automatically suspended from practicing law in
Florida, effective immediately following a May 18 court
order. Szarwark was found guilty of four courts of mail
fraud, a felony. He was sentenced to 24 months in prison,
with two years of supervised release.

Claire L. Tacher, 15041 S.W. 146" St., Miami, resigned
in lieu of disciplinary proceedings, with leave to seek
readmission after five years, effective immediately following
a May 7 court order. Tacher allegedly violated Bar rules
regulating trust accounts. She also failed to communicate
with her client, represent her client diligently, file an
appellate brief and respond to Bar

In The
Supreme Court of the United States

October Term, 1998

THELMA ROBY
DARLENE SHARPE
JAMES WELCOME,

Petitioners,

vs.

JOHN H. DALTON,

Respondent.

PROOF OF SERVICE

We, Thelma L. Roby, Darlene D. Sharpe, and James R. Welcome,
do swear or declare that on this date, enclosed PETITION FOR A
WRIT OF CERTIORARI on each of the above proceeding or that
party’s counsel, and on every other person required to be served, by
depositing an envelope containing the above documents in the
United States mail properly addressed to each of them with first-
class postage prepaid.

The names and addresses of those served are as follows:
The U.S. Attorney, P. Michael Patterson

114 E. Gregory Street
Pensacola, FL 32501-4972

We declare under penalty of perjury tht the foregoing is true
and correct.

Executed on 4 Mende , 1999.

DMaQec rival, brew K LLMeang

Signature

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1522%3A1. Public record. Not legal advice.