The Florida Bar v. Guillermo Pena SC

Transcription

1 The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. The Florida Bar v. Guillermo Pena SC CLERK PLEASE RISE. PLEASE RISE. > LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED. GOOD MORNING. THIS CASE ON THE DOCK IS THE FLORIDA BAR VERSUS PENA. GOOD MORNING. ON BEHALF OF GULL LIR MOW PENA. THIS CASE IS ABOUT AN ATTORNEY GUILLERMO PENA WHO WAS LICENSED IN 1991 PRACTICE LAW. HE IS HE TODAY? NO HE IS NOT. WE DON'T REQUIRE THE ATTORNEY TO COME UP? NO. AS FAR AS I AM AWARE, NO, NOT THAT I WAS AWARE OF? SHOULD THAT BE A REQUIREMENT IN THESE KIN OF PROCEEDINGS THE ATTORNEY SHOULD BE HERE? YOU KNOW, THAT MIGHT BE A GOOD IDEA TO MAKE THAT A REQUIREMENT; HOWEVER, SINCE WE ARE NOT IN A POSITION TO TAKE TESTIMONY AND THE ATTORNEY HIMSELF WOULD BE THE ONE THAT WOULD BE TESTIFYING, THE TESTIFYING PORTION AND THE EVIDENCE PORTION HAS BEEN CLOSED LONG AGO AS A PRACTICAL MATTER HE WANTED TO PARTICIPATE IN HIS OWN CASE. IF HE NEEDED TO HEAR WHAT WAS SAID. PLEASE GO AHEAD WITH YOUR ARGUMENT. WE DON'T WANT TO TAKE YOUR TIME UP WITH THAT.

2 ALRIGHTY. HE WAS BOARD CERTIFIED CRIMINAL ATTORNEY WHO PRACTICED LAW FOR 12 YEARS IN MIAMI FLORIDA. HE HAD AN OFFICE. HE HAD SUCCESSFUL PRACTICE. HE WASN'T. YES, LET'S GO INTO. ESIGNED LETTERS GUILLERMO PENA ESQUIRE. MORE THAN ONE LETTER. HE SENT A BILL FOR PERFORMING LEGAL SERVICES SUCH AS TELEPHONE CONFERENCE OF CLIENT, DRAFTING NON-COMPETE AGREEMENT, DRAFTING ARTICLES OF AMENDMENT, HE RECEIVED PAYMENT FOR LEGAL FEES. HE REPRESENTED HIMSELF AS IN HOUSE COUNSEL. HE WAS AN ATTORNEY FOR MOTION BANK. HE IS LISTED IN EMPLOYEE DIRECTORY AS PENA AND THE COMPANY'S ATTORNEY. GOING PIECE BY PIECE. THE INVOICE THAT YOU REFERRED TO WHERE IT SAYS LEGAL REPRESENTATION. HE WAS WORKING FOR A COMPANY CALLED CALL CENTER EXPRESS. HIS BOSS WAS EDGAR GONZALEZ. EDGAR. IS HE AN ATTORNEY? I AM SORRY. IS HE AN ATTORNEY? NO, NOT AT ALL. EDGAR GONZALEZ ASKED HIM TO MAKE AN INVOICE GIVEN THE HOURS THAT HE WORKED. HE GAVE HIM AN INVOICE. THE FACT IT SAYS LEGAL SERVICES ON IT. IT WAS ON OLD LETTERHEAD. AND IF YOU NOTICE THE INVOICE. HOW MUCH WAS HE CHARGING PER HOUR? IT WAS NOT -- LARGE AMOUNT OF MONEY. $125 AN HOUR OR SOMETHING ALONG THOSE LINES.

3 LEGAL CHARGE? YOUR HONOR, IN THESE DAY AN AGE, I DO PARALEGALS DO BILL BETWEEN $60 AND $150 AN HOUR. $150 FOR A LARGE LAW FIRM? YES. YES. I MISSED THAT A LITTLE BIT AS FAR AS YOU SAID THE BOSS TOLD HIM TO ACCEPTED OUT A BILL FOR LEGAL SERVICES? NO. HIS BOSS -- HE WORK FORCE A COMPANY CALLED CENTER EXPRESS. I UNDERSTAND THAT. GIVE ME A BILL FOR YOUR HOUR FORCE THIS WEEK. HE PULLS IT OUT ON HIS OWN LETTERHEAD, WRITES OUT A BILL, GIVES IT TO HIM. FOR WHATEVER REASON, THE BOSS WANTED SOMETHING ON THE BILL AT THAT TIME. WE DON'T KNOW WHY. THE PROBLEM IS HE KNEW HE WAS SUSPENDED. HE KNEW HE WAS NOT SUPPOSED TO USE LETTERHEAD INDICATING THAT HE WAS AN ATTORNEY. THERE ARE OTHER KINDS OF PIECES OF PAPER THAT HE WOULD HAVE WHERE IT AND BILL ON. WHY WOULD HE USE PAPER HE KNEW THAT HE SHOULD NOT USE BECAUSE HE WAS A SUSPENDED ATTORNEY? AND THE PERSON HE IS HANDING THAT PAPER TO KNEW FULL WELL THAT HE WAS NOT AN ATTORNEY. WHAT DIFFERENCE DOES THAT MAKE? IT MAKE AS BIG DIFFERENCE IN THAT IT IS NOT A LETTERHEAD HE IS SENDING OUT TO THE PUBLIC, WHERE THE PUBLIC IS SAYING, OH, HANG ON, HE IS AN ATTORNEY AT ALL IT IS SOMEBODY HE WORKS FOR. THE PERSON HE WORKS FOR

4 KNOWS HE IS SUSPENDED. SHOULD THAT PERSON HAVE TOLD HIM NO GIVE ME SOMETHING ON SOME OTHER KIN OF PAPER? WE DON'T KNOW WHAT THE PERSON WANTED IT FOR. WELL, LET ME ASK YOU A QUESTION. YES. EXHIBIT 7 TO THE PETITION SHOWS A LETTERHEAD FROM THE JANUARY TIME FRAME AND THEN EXHIBIT 5 SHOWS ANOTHER LETTERHEAD THAT IS A DIFFERENT TYPE AND FONT AND THE ONE WE ARE TALKING ABOUT WHICH IS THE LATEST ONE IN APRIL IS COMPLETELY DIFFERENT. FROM THE LETTERHEADS, THIS RE DIFFERENT SO WAS THIS DISCUSSED -- ONE THAT YOU WERE -- EEX IN ABOUT IT 2. EXHIBIT 2. THANK YOU. EXHIBIT 5 AND EXHIBIT 7. IF YOU LOOK AT THEM, THEY ARE ALL DIFFERENT LETTERHEADS. CORRECT. SO IF HE IS -- I MEAN THE ARGUMENT WAS, I WILL USE AN OLD LETTERHEAD. YES. DID HE HAVE DIFFERENT TYPE OF LETTERHEADS OVER THIS 3-MONTH PERIOD. I WOULD IMAGINE HE HAD NUMEROUS TYPES OF LETTERHEAD OVER HIS CAREER, HIS 12-YEAR CAREER AS AN ATTORNEY. DIDN'T HE SIGN THE LETTER FEBRUARY 6th, 2004, SIGNED IT AS GUILLERMO PENA ESQUIRE? IF HE LOOK AT SIG NUR THE SIGNATURE SAYS GULL LER GUILLERMO PENA. THE E REFEREE SOUND THAT IT WAS SIGNED GUILLERMO PENA ESQUIRE. THE TYPEWRITTEN PRINT

5 UNDER NAME SAYS GUILLERMO E PENA ESQUIRE. WELL, NOW, WAS THAT TYPED BEFORE HE WAS SUSPENDED FROM THE PRACTICE OF LAW? YOUR HONOR, OFTEN WE DO CUT AND PAST IN THE LEGAL PROFESSION OR ANY PROFESSION WHERE YOU HAVE A BILL, YOU KNOCK THE MIDDLE OF THE BILL OUT. EVERYTHING STAYS THE SAME. YOU TYPE IN. IT IS INTERESTING. THESE WERE ALL SORT OF A SERIES OF ERRORS IS WHAT YOU ARE SAYING. YOU SAID, WELL, WE DIDN'T NEED YOUR CLIENT HERE BECAUSE WE DON'T JUDGE CREDIBILITY. THE REFEREE JUDGED CREDIBILITY, HE DIDN'T FIND ANY OF THIS WAS INADVERTENT OR UNINTENTIONAL, BUT FOUND THIS PATTERN SHOWED THAT MR. PENA WAS PRACTICING LAW DURING THIS TIME THAT HE WAS SUSPENDED AND THAT IS JUST ONE TIME, BUT OVER SEVERAL DIFFERENT TIMES. ISN'T THAT -- I MEAN, ISN'T THAT WHAT HAPPENED? DON'T WE REFER TO REFEREE AS FAR AS THE CREDIBILITY OF THE ATTORNEY? THE REFEREE MADE CERTAIN FINDINGS OF FACT AND THEN FROM THOSE FINDING OF FACTS, THIS IS THE PRACTICE OF LAW. AND YOUR ARGUMENT WAS THAT IT WAS UNINTENTIONAL. IS WHAT YOUR ARGUMENT WAS? WELL, THAT IS PART OF MY ARGUMENT. I WAS SQUAD QUESTION HOW DID THIS HAPPEN. I ANSWERED HOW IT HAPPENED, NOW, WHAT THE REFEREE'S FINDINGS WERE WERE THAT HE DID SEND A LETTER OUT THAT HAD THE WORDS GUILLERMO PENA ESQUIRE ON IT. I MEAN, IT IS ONE THING TO

6 SAY, GEE, I FORGOT, I USED AN OLD LETTERHEAD. IT IS ANOTHER THING TO SAY THAT SOMEBODY WOULD -- I MEAN WHAT DOCUMENT WOULD SOMEBODY IN A SEPARATE PLACE WHICH IS CCE HAVE A SIGNATURE THAT HAD ESQUIRE ON IT? MEAN THAT DOESN'T MAKE ANY SENSE TO ME AS HOW THAT COULD BE INADVERTENT. EXPLAIN TO ME. WELL, FIRST OF ALL, WE ARE TALKING ABOUT EVERYTHING ON COMPUTERS HERE. I KNOW THAT. BUT THIS IS NOT THE LAW FIRM'S COMPUTER. HE SET IT IN SOME SEPARATE PLACE WHERE HE IS BEING LOOKED AT ANY OTHER PARALEGAL, WHY WOULD SOMEBODY HAVE ESQUIRE IN THEIR COMPUTER? HE IS WORKING AT ANOTHER FIRM AND I AM GOING TO ASSUME, I DIDN'T -- HE WE DIDN'T GO INTO THIS. I CAN NOT HAVE A FULL-BLOWN EXPLANATION. WELL, I FIND IT OFFENSIVE, ACTUALLY, THAT EXPLANATION. I THINK THAT IS INSULT TO ANYBODY'S INTELLIGENCE THAT SOMEBODY WHO IS SUSS PINED FROM THE PRACTICE OF LAW WHO SIGNS A LETTER DOESN'T SEE THAT IT SAYS ESQUIRE UNDER THEIR NAME ANOS THAT THAT IS ABSOLUTELY WHAT IS PROHIBITED BY THE TERMS OF A VERY SERIOUS ONE-YEAR SUSPENSION THAT HE AGREED TO. AND I DON'T FIND THAT ANY EXPLANATION WHATSOEVER. I APOLOGIZE, YOUR HONOR. WHAT ABOUT EXHIBIT 2? APPENDIX 2. HE HAD LETTERHEAD GUILLERMO PENA AND ASSOCIATES ATTORNEYS AT LAW, THE INVOICE IS RAY B 4 LEGAL

7 REPRESENTATION MARCH 22 TO APRIL 9, BILLED ON AN HOURLY BASIS, AGREEMENT, EDIT AGREEMENT, DRAFT OFFICER RESIGNATION, DRAFT ARTICLE OF AMENDMENT, THEN, AT THE END, TOTAL BILLABLE TIME 6.2, 5.1 HOURS TIMES $250 AND EVEN UNDER YOURED A YOU MISSION -- YOUR ADMISSION, A PARALEGAL DOESN'T MAKE $150 AN HOUR, FULL AMOUNT DUE $1275 AND THEN AGAIN GUILLERMO E. PENA ESQUIRE. HOW DO YOU EXPLAIN ALL OF THAT? THAT IS A DOCUMENT THAT REFEREE FOUND THAT HE HAD PERFORMED THESE ACTS OR CALLED CENTER EXPRESS PAID HIM FOR THEM. ALL RIGHT. IT SEEMS TO BE ACCORDING TO THE INVOICE ITSELF HE IS THE LEGAL REPRESENTATION. YOUR HONOR, HE WAS EMPLOYEE OF CALL CENTER EXPRESS OR DEPENDING ON WHO YOU ASK. WELL, IT'S NOT -- IF HE WAS EMPLOYEE OF CALL CENTER EXPRESS, WHY HE WOULD HE BE SUBMITTING INVOICE FROM GUILLERMO PENA ASSOCIATE AN ATTORNEYS AT LAW. BECAUSE THE EMPLOYEE ASKED HIM TO SUBMIT AN INVOICE. ATTORNEYS AT LAW, WHY COULDN'T HE HAVE SENT ON PLAIN PAPER IF HE WAS AN EMPLOYEE. HE SHOULDN'T HAVE DONE THAT. LET ME ASK THIS YOU. YOU HAVE ABOUT RUN OUT OF YOUR TIME. HERE, WE SAID AGAIN, WE ARE GOING TO ACCEPT THE REFEREE'S DETERMINATION. ON MATTERS OF CREDIBILITY AND ESSENTIALLY WHAT YOU ARE OUTLINING HERE.

8 AND WE HAVE ALSO GOT A RESPONSIBILITY EVEN TO MAKE SURE THE LAWYER UNDERSTAND THAT THEY ARE GOING TO HAVE TO ABIDE BY WHAT THIS COURT ORDERS AS FAR AS SUSPENSIONS ARE CONCERNED. IS THERE ANY REASON THAT THIS, THAT YOU CAN GIVE ME APART FROM THIS ARGUMENT ABOUT HE DIDN'T DO IT AS TO WHY HE SHOULDN'T BE DISBARRED BECAUSE HE IS IN VIOLATION OF HIS SUSPENSION? YES. WHEN HE RESERVED THE SUSPENSION, HE CLOSED HIS PRACTICE DOWN COMPLETE. HE NEEDED TO GET A JOB. HE GOES TO CALL CENTER EXPRESS, A TELEMARKETING FIRM. HE GOES AND GET AS JOB. WHATEVER THE STUFF THAT IS WENT ON AT CALL CENTER EXPRESS, HE WAS NOT HOLDING HIMSELF OUT AS AN ATTORNEY. HE HAS A BOSS THAT IS ASKING HIM TO DO THINGS, TO GO AMEND ARTICLES OF INCORPORATION. $35 FEE. HE IS NOT GOING OUT TO THE PUBLIC SAYING, HANG ON. I AM STILL NOT UNDERSTANDING YOUR STATEMENT THAT HE WAS AN EMPLOYEE OF THIS COMPANY. WAS HE MAKING A SALARY IN THE COMPANY? YOUR HONOR, THERE WAS NUMEROUS PAYCHECKS SPREAD OUT -- WAS HE MAKING SAL ZY YES IT WAS $1,000. SOMETIMES IT WAS $1250 A WEEK. SOMETIMES IT WAS $1700. I DON'T UNDERSTAND. IF HE IS MAKING SALARY. DID THEY SUBMIT W2 FORM, W 4? CALL CENTER EXPRESS WAS SHUT DOWN AT ONE POINT, BUT

9 CALL CENTER EXPRESS LIKED TO CONSIDER ALL EMPLOYEES INDEPENDENT CONTRACTORS. THEY DID HE DUCT PAYROLL TAXS? NO. ALL OF THE EMPLOYEES INDEPENDENT CONTRACTOR. NOW HE IS SAYING INDEPENDENT CONTRACTOR. HE WAS NOT AN EMPLOYEE? THAT IS A LEGAL DISSTRICTION. IT IS VERY IMPORTANT IN THE PROCEEDING. RIGHT. IT IS VERY, VERY IMPORTANT ONE, BUT WHAT HAPPENS IS IF AN EMPLOYER SAYS YOU COME TO WORK AT THIS DAY AND THIS TIME, YOU BECOME AN EMPLOYEE. AND EMPLOYEE USUALLY MAKE ASSET SAL ZY YES. MY POSITION THAT HE WAS AN EMPLOYEE EVEN THOUGH HE WAS BEING TREATED AS AN INDEPENDENT CONTRACTOR BY HIS EMPLOYER. REGARDLESS OF WHETHER HE WAS EMPLOYEE OR WHATEVER YOU ARE SAYING HE WAS. HE WAS PRACTICING LAW. HE WAS ACTING EVENTUALLY AS HOUSE COUNSEL FOR THIS CORPORATION, WAS HE NOT? I AM HANDING HAVING DIFFICULTY -- WHAT IS YOUR POINT? IN OTHER WORDS, ARE YOU SAYING THE PENALTY IS TOO SEVERE? ARE YOU SAYING THAT THE DETAILED FACTUAL FINALINGS THE REFEREE THAT EVERYONE OF THEM ARE JUST ABSOLUTELY WRONG, THAT THERE IS NO EVIDENCE TO SUPPORT THESE FACTUAL FINDINGS? WHAT IS YOUR ARGUMENT ON BEHALF OF YOUR CLIENT? MY ARGUMENT, HE TOOK A ONE-YEAR SUSPENSION. THE CLOSEST HE CLOSED HIS PRACTICE.

10 HE WENT AND WORK FOR A TELEMARKETING FIRM AS A LAWYER? NOT AS LAWYER. WHAT DID HE DO FOR THEM? WHATEVER HE WAS INSTRUCTED TO DO BY EMPLOYEE. HE DOESN'T, IF HE WAS INSTRUCTED TO DO LEGAL WORK FOR THESE, ARE YOU TELLING US, HE CAN SAY, WELL, THEY TOLD ME TO DO THIS LEGAL WORK, THEREFORE, I AM NOT RESPONSE FOR THAT? ABSOLUTELY NOT. IS A SUSPEND LAUREN TITLED TO WORK AS HOUSE COUNSEL FOR A COMPANY LIKE THIS OR AN INSURANCE COMPANY OR WHATEVER JUST BECAUSE HE IS NOT OUT, YOU KNOW, YOU TALK ABOUT, THERE SHOULD BE SOME DIFFERENCE BETWEEN HOLDING HIMSELF OUT TO THE PUBLIC, THIS COMPANY IS THE PUBLIC, IS IT NOT? YES. ALL RIGHT. WELL, HE THEN -- ARE YOU TELLING US THAT HE WAS NOT PERFORMING LEGAL WORK FOR THAT COMPANY? YOUR HONOR, THE QUICKEST EXAMPLE OF THE -- WELL, JUST ANSWER MY QUESTION. ARE YOU REPRESENTING TO THIS COURT UNDER THE EVIDENCE THAT WAS GIVEN AT THIS HEARING THAT THE REFEREE COULD NOT CONCLUDE PROPERLY SO THAT HE WAS DOING LEGAL WORK FOR THIS COMPANY? THAT IS WHAT -- ARE AN OFFICER OF THE COURT, TOO? ARE YOU REPRESENTING TO US THIS HE REFEREE COULD NOT PROPERLY CONCLUDE THAT HE WAS DOING LEGAL WORK FOR THIS COMPANY? NO, I AM NOT. WELL, THEN, THE FACT AS

11 FOUND BY THE REFEREE ARE THAT HE WAS DOING LEGAL WORK. THAT IS PRACTICING LAW. THAT IS WHAT WE CALL IT. OKAY. ALL RIGHT. HE IS IN VIOLATION OF HIS SUSPENSION. ALL RIGHT. NOW WHY THEN SHOULDN'T WE FOLLOW IF YOU ACCEPT WHAT THE REFEREE HAS FOUND HERE, THE RECOMMENDATION OF THE REFEREE THAT HE BE DISBARRED? BECAUSE HE HAD THE ONE PRIOR DISCIPLINARY PROCEEDING IN WHICH HE TOOK A ONE-YEAR SUSPENSION, HE HAD NOTHING PRIOR TO THAT, CLOSED UP AN ONGOING PRACTICE, GAVE UP HIS BOARD CERTIFICATION, WAS A VERY, VERY SUCCESSFUL ATTORNEY IN THE PRACTICE OF LAW. I DON'T KNOW ABOUT FINANCIALLY. ON THE PRACTICE OF LAW. CERTIFICATION IS PART OF THE CERTIFICATION REQUIREMENTS IF YOU ARE SUSPENDED, YOU LOSE IT, RIGHT? RIGHT. YOU FORFEIT IT? YES. HE AGREED TO THIS ONE-YEAR SUSPENSION AS PART OF THAT -- YOU ARE PAST YOUR REBUTTAL. IF YOU WOULD, PLEASE EXPLAIN TO THE COURT THAT ARGUMENT WITH REGARD TO THE ULTIMATE SANCTION OR DISCIPLINE IS TOO SEVERE AND WHY. IT IS TOO SEVERE BECAUSE OF HIS PRIOR DISCIPLINARY ACTION AS ONE INSTANCE, HE GAVE EVERYTHING UP, WHEN THAT HAPPENED AN WENT AND WORKED IN THE PRIVATE SECTOR, DID NOT HOLD HIMSELF

12 OUT AS AN ATTORNEY AS MANY CASES ARE, DID NOT SHOW UP IN COURT, MANY CASES, HOLDING OUT AS AN ATTORNEY, SHOWING UP IN COURT, PRACTICING LAW IN COURT, THEN, THEY ARE GETTING DISBARRED. HE DID NONE OF THAT. HE ANSWERED COMPLAINT, HE TALKED TO REGULATORY AGE OPINION CIRCUMSTANCE SO ON AND SO FORTH. ANY OTHER TYPE OF MITIGATION OR INFORMATION THAT WAS GIVEN TO THE TRIAL JUDGE TO TAKE INTO ACCOUNT IN ADDITION TO THESE BAD DECISIONS? ANY OTHER MITIGATION AT THE TRIAL COURT HAD THAT THE TRIAL COURT OVERLOOKED OR DIDN'T CONSIDER? NOTHING. NOTHING? NOTHING. THANK YOU VERY MUCH. THANK YOU. > MAY IT PLEASE THE COURT RANDI LAZARUS ON BEHALF OF THE FLORIDA BAR. IT IS MR. PENA TO ESTABLISH TO THIS COURT THAT THE REFEREE HAD NO EVIDENCE TO SUPPORT HER FINDINGS. CAN WE GO -- I WOULD LIKE TO GET A LITTLE HISTORY ON THIS. 24 WAS A VOLUNTARY SUSPENSION FOR A YEAR, BUT HE FIRST UNDER AN EMERGENCY SUSPENSION. WHAT WAS THIS, WE TALKED ABOUT THE IMPLICATIONS AND STELLAR RECORD, WAS WHAT THE YEAR SUSPENSION, THAT IS PRETTY LONG, WHAT WAS THE ACT? IT WAS ORIGINALLY -- I DON'T KNOW ABOUT STELLAR CAREER, BUT I DO KNOW THERE WAS AN EMERGENCY SUSPENSION IN WHICH IT WAS ALLEGED THAT MONEYS WERE USED, MONEYS HE

13 RECEIVED ON BEHALF OF SOME INVESTORS WERE JUST DISTRIBUTED OUT TO THIS COMPANY IN WHICH HE WAS A PRINCIPAL AND THAT MATTER WAS TRIED BEFORE JUDGE RODRIGUEZ AND THEY ARE AFTER MR. PENA ENTERED INTO AN AGREEMENT IN WHICH HE MADE SOME ADMISSIONS WITH REGARD TO THAT PROCEEDING AS WELL AS SOMETHING THAT OCCURRED AT THE EMERGENCY SUSPENSION HEARING WHICH IS THAT HE DID NOT GIVE COMPLETE TESTIMONY BEFORE JUDGE RODRIGUEZ, SO WE RESOLVED THE EMERGENCY SUSPENSION CASE AND IT WAS A PENDING PETITION FOR SHOW CAUSE THAT I HAD FILED AFTER THE EMERGENCY SUSPENSION HERE. NOW DO WE HAVE A RECORD OF WHAT OCCURRED BEFORE JUDGE RODRIGUEZ IN THE PRIOR CASE? IS THAT -- NO. YOU DON'T HAVE THE RECORD OF THAT BECAUSE IT WAS NOT AN APPEAL TAKEN. OKAY. THERE WAS NEVER A COMPLAINT FILED BECAUSE THAT TYPE OF PROCEEDING RESOLVED. BUT WE HAVE WHAT THE SUSPENSION WAS FOR? WE KNEE. YES, DO YOU. RIGHT NG THE CONSENT JUDGMENT, THERE ARE, I BLEEN, I HAVE IT HERE. THERE ARE TWO -- I HAVE IT SOMEWHERE HERE. THERE ARE TWO ADMISSIONS THAT HE MADE WITH REGARD TO THE EMERGENCY SUSPENSION PROCEEDING AS WELL AS THE ADMISSION, THE OMISSION BEFORE OR THE INCOMPLETE TESTIMONY HE GAVE BEFORE THE JUDGE. TWO VERY SERIOUS MATTERS. TWO VERY SEREAS MATTERS.

14 HE WAS PETITIONING THE WAY THIS CAME TO THE BAR'S ATTENTION OF PRACTICING WHEN HE PETITIONED FOR REIN STATEMENT. NO, NOT EXACTLY. WHAT ORIGINALLY HAPPENED WAS HE PETITIONED REIN STAUMENT -- PETITION FOR REIN STATEMENT WAS FILED ON NOVEMBER 18th AND DURING THAT TIME WHEN WE WERE IN THE -- STATEMENT THIS INFORMATION CAME TO MY ATTENTION. THAT HE WAS PRACTICING LAW? YES. THROUGH THE PROCEEDING WHICH HE THEN ALLUDED TO AS A RESULT OF THAT, I FILED A SEPARATE PROCEEDINGING IN THE COURT ON THE PETITION FOR ORDER TO SHOW CAUSE, THOSE TWO PROCEEDINGS ACTUALLY TRAVELED SEPARATELY AND THE COURT DID NOT CONSOLIDATE THOSE TWO MATTERS ULTIMATELY JUDGE RODRIGUEZ WAS PINTED TO HEAR BOTH THE REINSTATEMENT DECISION AND THE ORDER TO SHOW CAUSE. CAN I ASK YOU A QUESTION. YOU MENTIONED THAT WERE NOT CONSOLIDATED BUT RELATED. WAS MOTION FILED? OUR COURT DID NOT CONSOLIDATE? A MOTION WAS FILED. I OPPOSED IT. THE TWO ACTIONS WERE NEVER CONDOLLLATED. IT WAS A POSITION AND SUBMITTED? YES. OKAY. THEN, WE CONSOLIDATED. THERE WAS OPPOSITION. YES. THEN WE WENT FORWARD ON PASSION FOR SHOW CAUSE IN FRONT OF JUDGE RODRIGUEZ.

15 WHAT WOULD YOU SAY WAS THE MOST IF THERE WAS ONE MOST SERIOUS ACTS OF PRACTICING LAW, OR THERE IS ONE OR IS IT JUST -- ENTIRE PATTERN? AND I GUESS I'M LOOKING AT THIS FEBRUARY 6TH 20 # 04 LETTER, TO A LAWYER FROM A LAWYER, AND SHGS, IS A PROMISED I WOULD GET YOU A SETTLEMENT OFF FORE TODAY. DID THAT LAWYER -- DID HE SPEAK OR TESTIFY AS AT THE HEARING. NO IDENTITY TESTIFY. WHAT WOULD YOU SAY IS THE MOST SERIOUS ACT THAT SHOWS HE WAS PRACTICING LAW. I DON'T KNOW IF WE CAN -- PARTICULAR HE WAS JUST IN HOUSE COUNSEL THE FACT THAT HE WAS IN-HOUSE COUNSEL FOR A COMPANY AND IF YOU LOOK AT THE TIME, THE TIME FRAME HERE. IT -- SUSPENDED BY THIS COURT EFFECTIVE NOFRN ON EMERGENCY SUSPENSION, HE IS ALREADY IN JANUARY, HAVE HIM IN JANUARY RESPONDING TO LETTERS FROM ANOTHER LAWYER ON BEHALF OF THIS COMPANY AND THAT IS THE THE JANUARY 04 LETTER WHERE HE RESPONDED TO SUSAN, AND HE IS SIGNING THAT ESQUIRE. THEN OF YOU HIM, IN FEBRUARY WITH MR. SOSAAS YOU MENTIONED THEN LEGAL BILL JUST ONE LEGAL BILL THAT WE HAD WE DON'T KNOW WHAT ELSE WAS OUT THERE, WHICH KFRNED FROM MARCH TO APRIL. DETESTIFY THAT THIS ABOUT THIS IDEA THAT SOMEHOW ESQUIRE JUST GOT ON THERE BY MAGIC OR -- BY -- MAGIC OF COM COMPUTERS? IN FACT THERE, WAS ABSOLUTELY NO TESTIMONY AT THE FINAL HEARING CONCERNING HOW THIS HAPPENED OR WHY HE

16 USED WHETHER HE USED OLD LETTERHEAD OR WHETHER IT WAS OVERSIGHT ANYTHING OF THAT -- DIDN'T TRY TO MITIGATE WHATS THIS WAS. HE GAVE NO EXPLANATION. IN FACT HE WAS HE WAS QUITE BOLD IN STATING THAT THE ACT THAT HE COMMITTED WERE PESHL PERMISSIBLE, AND -- HE PERFECT WILL PERMISSIBLE ANYBODY WOULD GO ON WEBSITE THERE SHOULD BE GINN INJUNCTION AGAINST SECRETARY OF STATE BECAUSE SECOND OF INDICATE -- STATE ENCOURAGES PEOPLE GO ON -- THE WEBSITE, AND -- DO WE HAVE ANY CASES OUT THERE THAT INDICATE THAT A SUSPENDED LAWYER CAN WORK AS HOUSE COUNSEL? OF COURSE NOT I MEAN OE-- YOU CANNOT BE A SUSPENDED LAWYER, AND HAVE CLIENT CONTACT FIRST OF ALL, MR. PENA WAS HAVING CLIENT CONTACT, ADMITTEDLY SO, IN THAT ONE BILL THAT WE HAD, WE HAVE HIM HAVING I BELIEVE AT LEAST NINE CLIENT CONTACTS. WE KNOW THAT SUSPENDED LAWYERS DO GO TO WORK FOR A COMPANY AS PARALLEL, -- PARALEGAL HAVE WE DRAWN A LINE THERE AS TO WHETHER THE DIFFERENCE IS?. WELL, A SUSPEND LAWYER ALSO HAS TO BE SUPERVISED THERE IS A DIFFERENCE. AND THAT IS WHY THE WE HAVE THE REQUIREMENT UNDER THE FLORIDA RULES REGULATING THE FLORIDA BAR THAT WE REQUIRE THE EMPLOYER TO MANY FILE SOMETHING WITH THE BAR AS WELL AS EMPLOYER MEANING SUSPEND LAWYER TO SAY THAT I'M FOLLOWING THE RULES, I'M NOT ENGAGING IN PRACTICE OF LAW AND SUPERVISOR IS SAYING

17 THAT AS WELL, SO, CONCEIVABLY COURSE, WORK FOR A COMPANY BUT YOU CAN'T ACT AS THEIR LAWYER. AND THAT'S EXACTLY WERE A MR. PENA WAS DOING. I THINK YOU PROBABLY ANSWERED THIS, IN THE ANSWERS TO THESE QUESTIONS, BUT, YOU KNOW, PART OF THE ALMOST INEXPLICABLE THING HERE IS HOW CAN A LAWYER WHEN YOU READ THE PERSONAL HISTORY THAT REFEREE OUTLINED HERE, THAT WE'VE GOT A LAWYER SORE CERTIFIED CRIMINAL TRIAL LAW BOARD OF LEGAL SPELL ADDITIONAL AB RATING BY HARTINDALE HUBBLE HE IS IN THE BAR REGISTRY PREEMINENT ATTORNEYS WHO'S WHO IN AMERICA WHO'S WHO IN AMERICAN LAW HE RECEIVED SEVERAL PRO BONO RECOGNITION AWARDS FROM THE PUT SOMETHING BACK PROGRAM DOWN IN MIAMI, AND THE CUBAN BAR ASSOCIATION PRO BONO PROJECT, IN OTHER WORDS ANY EXPLAN PLAN -- EXPLANATION AT THIS HEARING SOMEBODY THAT HAS GONE FROM THE MOUNTAIN TOPIC THAT REALLY IS DESCRIBED HERE, MOUNTAIN TOP DESCRIBED HERE TO COMMITTING FIRST OF ALL ENDING UP TO THE ONE-YEAR SUSPENSION. NOTHING YOUR HONOR WAS THERE ANY ATTEMPT TO EXPLAIN THAT -- NO. IN FACT THERE WAS NOT. THE EXPLANATIONS THAT WERE GIVEN BY MR. PENA WAS THAT HE WAS PERMITTED TO DO WHAT HE WAS DOING THERE WAS NOTHING WRONG WITH WHAT HE WAS DOING. THIS IS NOT A CASE -- SIMILAR TO ONES WHERE -- IN RECENTLY THERE IS SHARUSE CASE IN WHICH THAT LAWYER HAD SOME MENTAL HEALTH

18 ISSUES DIDN'T OPEN ENVELOPES, SAID SHE WAS NIGHT WAR SHE WAS EVEN SUSPENDED, HAD NOTHING LIKE THAT. WE HAVE NOTHING LIKE IN THE COHEN CASE, WHERE, THE ATTORNEY JUST DIDN'T REALIZE THERE WAS PROHIBITION ABOUT PUTTING UP THIS SIGN OR THERE WAS ANOTHER ATTORNEY USED A LETTER HEAD MISTAKENLY BUT THIS MR. PENA DID NOT TESTIFY AS TO THOSE THINGS HAPPENING, THERE WAS NO EXPLANATION GIVE, FINAL HEARING, SO IT IS REALLY NOT HARD TO UNDERSTAND WHY THE REFEREE CONCLUDED AS SHE DID. AND -- WAS THERE ANY EXPLANATION THERE THAT HE HAD FOR INSTANCE CONTACTED THE FLORIDA BAR OR AN EXPERIENCED ATTORNEY OR WHATEVER AND SAID YOU KNOW, HERE IS WHAT I WOULD LIKE TO DO I WOULD LIKE GO TO WORK FOR THIS COMPANY AND DO THUS AND SO, AND WOULD THAT BE ALL RIGHT? YOU KNOW WHILE I'M SUSPEND SND WAS THERE ANY -- THERE WAS NO TESTIMONY OF THAT NATURE YOUR HONOR, HE STEADFAST STEADFASTLY MAINTAINED THROUGHOUT THE WILL FINAL HEARING THAT WHAT HE DID WAS PERL PERMISSIBLE -- PERFECT WILL PERMISSIBLE COMPANY PRINCIPALS WERE AWARE HE WAS SUSPENDED THAT HE WAS JUST PERFORMING ACTS A WEBS PERMITTED TO DO AND IN FAKCT -- I SUBMITTED A PORTION OF DEPOSITION TESTIMONY OF ONE OF THE PRINCIPALS PABLO MARTINEZ, AND HE TESTIFIED THAT MR. PENA WAS THE LAWYER FOR THE COMPANY, HE WAS THEIR BUSINESS LAWYER, HE WAS THEIR LEGAL ADVISER, AND

19 THAT WAS HIS ROLE. DID HE KNOW THAT HE WAS SUSPENDED, THOUGH. YES. SO WHAT THERE IS NOTHING SO HE DIDN'T REALIZE THAT YOU CAN'T HAVE AN IN-HOUSE COUNSEL AS SUSPENDED LAWYER AS IN-HOUSE COUNSEL? I GUESS WE DON'T -- GUESS NOT. IT -- THERE RARE THESE PEOPLE THAT WERE PRINCIPALS IN THE COMPANY WERE NOT LAWYERS. SO WE CAN'T -- WE DON'T KNOW EXACTLY WHAT ELSE THEY MAY HAVE -- DONE OR NOT DONE. REGARDING APPENDIX NUMBER ONE, DID LEWIS NICHOLAS IN-HOUSE ATTORNEY FOR OCEAN BANK TESTIFY BY DEPOSITION OR AT THE HEARING? HE TEST -- TESTIFIED AT THE HEARING. DID EHE GO AHEAD WHAT DE-- DID HE SAY ABOUT CONTACTS WITH MR. PENA. HE SAID THAT HE RECEIVED IN FACT MR. PENA CALLED AND LEFT A MESSAGE WITH HIS WITH MR. NICHOLAS'S SECRETARY ONE OF THE THINGS ADMITTED INTO EVIDENCE WAS THE YELLOW STICKY SOCIETY FLOAT MR. NICHOLAS' SECRETARY THAT SAID PILL BEEN -- BILL PENA ESQUIRE CALLED ON BEHALF OF THIS COMPANY, HE THEN MR. NICHOLAS I BELIEVE RUSHLD THE TELEPHONE CALL -- RETURNED THE TELEPHONE CALL MR. NICHOLAS TESTIFIED THAT MR. PENA IDENTIFIED HIMSELF AS HOUSE COUNSEL FOR -- EXPRESS HE DISCUSSED WITH HIM THAT THERE WAS A PENDING LAWSUIT, AND THAT MR. PENA WAS GOING TO FOLLOW -- FILE A MOTION FOR EXTENSION OF TIME TO TILE ANSWER TO THE COMPLAINT THERE WAS DISCUSSION BACK AND FORTH CONCERNING THE PAYMENT OF --

20 WHICH WAS SUBJECT OF THE LITIGATION MR. NICHOLAS WAS SAID THAT MR. PENA IDENTIFIED HIMSELF AS THE LAWYER FOR HOUSE COUNSEL FOR THE COMPANY, HE THEN MR. NICK -- WROTE AS THE -- LETTER CONFIRMED CONVERSATION, AND FOLLOWED UP ON IT, THERE WAS NO LETTER BACK FROM MR. PENA SAYING DON'T CALL ME ESQUIRE YOU'VE GOT THIS ALL WRONG I'M NOT FILING ANYTHING. NOTHING LIKE THAT. THAT SEEMS TO ME IN THE MOST DAMAGING EVIDENCE EVEN MORE DAMAGING THAN THE DOCUMENTS THAT OF YOU A WITNESS TESTIFIED THAT HE REPRESENTED HIMSELF AS HOUSE COUNSEL BECAUSE MR. PENA COULD SAY WELL SOME OF THESE THINGS WERE CONSISTENT WITH EMPLOYEE OF THE COMPANY SOMETHING LIKE. THAT IS WHAT WE HAVE CONSISTENTLY DON'T FORGET YOUR HON SAUL PLAST AND MRS. SELG, IN APRIL 200 4SHGS GAVE MR. PENA, 100 DOLLARS, TO LOOK INTO A MATTER CONCERNING MR. I TKHINK OLE FATHER WHO HAD BEEN KILLED IN ACCIDENT TO REVIEW POLICE REPORTS, MAD NOTHING TO DO -- HAD NOTHING DO WITH -- ATTACHED AS SECOND TO LAST. -- THIS REFEREE'S REPORT WAS ENTERED ON JULY HAS THERE BEEN ANY ADDITION ADDITIONAL GRIEVANCES? FILED AS TO MR. PENA? ANY ADDITIONAL WHAL. ADDITIONAL MATTERS FILED AS TO HIS ACTIVITIES, SINCE 2005? THERE HAVE NOT BEEN AS OF THIS MOMENT. BUT THERE MAY BE ONE FILE SHORTLY.. WHAT YOE DOES IT TAKE SO

21 LONG WHY DOES IT TAKE SO LONG FROM JULY OF 2005, OVER A YEAR -- OH, WELL. THE NOW REMEMBER MR. PENA WAS THE APELNANT THIS MATTER IF YOU NOTICE, IF YOU LOOK AT THE FINAL BRIEF THAT YOU HAVE HERE, WE ARE ON THE SECOND AMENDED INITIAL BRIEF BECAUSE I MOVED TO STRIKE HIS BRIEF TWICE. BECAUSE THERE WERE MATTERS AND I CAN -- CONTAINED IN THE BRIEF NOT BEFORE THE REFEREE SO I BELIEVE AN AFFIDAVIT, AND REFERENCES TO NOT AFFIDAVIT,REFERENCES TO SOME THINGS AS WELL AS DEPOSITION OF MR. PENA NEVER BEFORE THE REFEREE SO THE TIME THAT -- SO THE MATTERS WERE STRUCK, AND I DON'T BELIEVE I ASKED FOR AN EXTENSION OF TIME TO FILE MY BRIEF. I GUESS THE ISSUE IS I DON'T KNOW THAT THERE'S ANY RECORD THAT -- TO DEAL WITH IT AS TO WHETHER IF THE COURT SHOULD APPROVE THE REFEREE'S REPORT, WHETHER THE DISBARMENT WOULD DATE FROM THE DATE OFPROVAL OR THE DATE OF THE REFEREE'S REPORT. REPORT. WELL, BUT GENERALLY, YOUR HONOR -- COME OUT OF THIS COURT THAT I HAVE SEEN ARE FROM THE DATE -- DATE OF THE COURT ORDER UNLESS THERE WAS SOMETHING SPECIFIED BY THE REFEREE I DON'T THINK THERE WAS ANY NONPROTUNC, RECOMMENDATION HERE IF THE COURT THINKS THERE WAS TIME DELAY THAT SHOULD NOT BE ATTRIBUTABLE TO THE FLORIDA BAR THAT WAS ATTRIBUTABLE TO MR. PENA BECAUSE HIS BRIEF HAD BEEN STRUCK TWICE. DID YOU SEE IN THE PROCESS ANYWHERE WHERE THE

22 COURT PARTICIPATED IN THEE UNNECESSARY DELAY ON THAT THAT WE NEED TO. O, NO. TO CORRECT. NO YOUR HONOR ON THE CONTRARY I THINK THIS CASE GOT VERY RAPIDLY BEFORE THE REFEREE, AND IT WAS HEARD, AND THE REPORT WAS ISSUED,NOT MORE THAN, MAYBE A LITTLE MORE THAN 30 DAYS, AND THERE WAS A AT LEAST A HALF DAY OF TESTIMONY BEFORE THE REFEREE THAT -- I'M NOT -- NOTHING IN THIS SUPREME COURT CAUSED UNNECESSARY DELAY THAT YOU SAW IN. YOUR HONOR I WOULD NEVER BE SO FOLLOWED -- [LAUGHTER], SUPREME COURT -- WE NEED TO KNOW THOSE THINGS I MEAN THIS HAS COMBRAERN WE DO NEED TO KNOW THOSE THINGS. I THINK ATREEK IF ATTRIBUTABLE TO ANYBODY, I DON'T KNOW I'M NOT SAYING THIS PERSONALLY -- BECAUSE WE WORKED VERY WELL TOGETHER, BUT, BECAUSE THERE WERE TWO. THE NATURE OF THE CASE MORE THAN IT IS SOMETHING THAT THE COURT DID. IT BECOMES AN ISSUE, BECAUSE, AGAIN, IF SOMEBODY IS GOING TO BE DISBARRED YOU KNOW THEN AND IT IS TWO YEARS TILL THE PP PIN COMES -- OPINION COMES OUT NOT -- THE IN ISSUE WHETHER THAT SHOULD GO BACK TO HE COULDN'T HAVE FROM PRACTICAL POINT OF VIEW HAVE STARTED ANYTHING WHILE THESE PROCEEDINGS ARE PEND, AND NOT THAT I FEEL IN THIS PARTICULAR CASE PARTICULARLY BAD BADLY FOR MR. PENA SEEMS LIKE HE BROUGHT IT ON HIMSELF HIMSELF, JUST -- GENERALLY

23 RULE FOR SELL OFF THESE BAR CASES THINGER AT APPELLATE LEVEL THAN WE WOULD LIKE TO SEE THEM TAKE. I CAN JUST TELL YOU FROM WHERE I SIT THAT WE STRIVE TO MOVE THE CASES, BEFORE THE REFEREES, AND NOT REQUEST ADDITIONAL TIME WE TRY TO I BELIEVE, MOST OF THE TIME FILE OUR BRIEFS WITHOUT REFLECTING EXTENSIONS, SO WE TRY VERY BEST. DID YOU SAY IN ASSISTANCE THE APPELLATE THE RESPONDENT'S BRIEF WAS STRICKEN. TWICE. TWICE. FOR WHAT REASON. BECAUSE THERE WERE THERE WERE MATTERS OUTSIDE OF THE RECORD CONTAINED IN THE BRIEF. THAT IS PART OF THE EXPLANATION THAT -- YES, THAT IS THE EXPLANATION. THANK YOU VERY MUCH. THANK YOU FOR YOUR TIME. -- WITH OUR ASSISTANCE OF YOU PEJSDED YOUR TIME I WILL GIVE YOU ONE MINUTE IF THERE IS SOMETHING YOU NEED TO RESPOND. TO IF NOT --. SNOOM WOULD BE UNNECESSARY. THANK YOU VERY MUCH.