The Florida Bar v. Jacqueline Marie Kinsella , 260 So. 3d 1046 ( 2018 )

Supreme Court of Florida
____________
No. SC17-55
____________
THE FLORIDA BAR,
Complainant,
vs.
JACQUELINE MARIE KINSELLA,
Respondent.
December 20, 2018
PER CURIAM.
This case is before us on the review of a referee’s report recommending that
Respondent, Jacqueline Marie Kinsella, be found guilty of various violations of the
Rules of Professional Conduct arising from her theft of money from Kohl’s
Department Store, where she worked as an employee. After finding numerous
mitigating factors, the referee recommended that Kinsella be suspended from the
practice of law for ten days. Neither party contested the findings of guilt, but The
Florida Bar sought review of the ten-day suspension, arguing in favor of a
rehabilitative suspension of ninety-one days. After reviewing the referee’s report,
we suspended Kinsella immediately and issued an order to show cause why she
should not receive a more severe sanction up to and including disbarment. Having
considered the record, the responses to the order to show cause, and our prior case
law, we conclude that a more severe sanction than a ninety-one day suspension is
required and hereby suspend Kinsella from the practice of law for three years.
FACTS
Kinsella was admitted to The Florida Bar in February 2016. 1 On three
separate occasions between April 21, 2016, and May 6, 2016, Kinsella stole money
from three different cash registers at the Kohl’s Department Store where she
worked. She stole $140 on April 21, 2016, $100 on April 25, 2016, and $520 on
May 6, 2016.
In May 2016, she was arrested and charged with grand theft of $300 or more
but less than $5,000. On September 1, 2016, Kinsella entered a no contest plea to
the first-degree misdemeanor charge of petit theft, and the remaining charges were
dismissed by the State. Adjudication of guilt was withheld and she was placed on
probation under the supervision of the Department of Corrections for a period of
twelve months. Kinsella was further ordered to pay court costs and restitution to
1. Prior to becoming an attorney, Kinsella had two misdemeanor traffic
cases brought against her, which were the subject of inquiry by the Florida Board
of Bar Examiners.
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Kohl’s, perform fifty hours of community service, complete a Vital Life Skills
Class, and not to enter or go upon the premises of any Kohl’s store.
On January 11, 2017, The Florida Bar filed its formal complaint against
Kinsella in these proceedings. On January 31, 2017, Kinsella filed her Answer
wherein she admitted the alleged facts and rule violations. On April 27, 2017, a
sanction hearing was held before a referee to determine the appropriate disciplinary
sanction. Because Kinsella admitted all allegations contained in the Bar’s formal
complaint, no evidentiary testimony was presented to establish findings of fact or
guilt.
The referee found that Kinsella fully cooperated with law enforcement and
the Bar, her misconduct was not related to alcohol or drug abuse or a gambling
addiction, and none of the stolen funds were related to the practice of law.
Kinsella testified during a sworn statement and at the sanction hearing that she
voluntarily entered into a treatment contract with Florida Lawyers Assistance, Inc.
(FLA) and has made progress in addressing the issues that led her to engage in
these acts of misconduct. She reported that her treatment involves debt
management and financial counseling. Kinsella admitted that she took the funds
from Kohl’s because she had unresolved debt. The referee found that Kinsella’s
financial problems existed at the time she applied for membership to The Florida
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Bar and continue to persist today. Lastly, the referee found that Kinsella
demonstrated significant remorse during her testimony at the sanction hearing.
The referee’s report found Kinsella guilty of violating multiple Rules
Regulating the Florida Bar including: Rules 3-4.3 (Misconduct and Minor
Misconduct); 3-4.4 (Criminal Misconduct); 4-8.4(b) (Misconduct–Criminal
Conduct that Reflects Adversely on Honesty, Trustworthiness, or Fitness as a
Lawyer); and 4-8.4(c) (Misconduct–Conduct Involving Dishonesty, Fraud, Deceit,
or Misrepresentation).
Based on his findings of fact, recommendations as to guilt, the aggravating
and mitigating factors, the Florida Standards for Imposing Lawyer Sanctions, and
case law, the referee recommended that Kinsella be suspended from the practice of
law for ten days, followed by a one-year period of probation with additional
conditions, and that she be ordered to pay the Bar’s costs of $1,616.60. On
February 15, 2018, this Court issued an order suspending Kinsella from the
practice of law and commanding her to show cause why the referee’s
recommended sanction should not be disapproved and a more severe sanction, up
to and including disbarment, be imposed.
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ANALYSIS
Neither Kinsella nor the Bar contest the appropriateness of the referee’s
findings of fact or recommendations as to guilt. Accordingly, we approve the
referee’s findings of fact and recommendations as to guilt.
As for the appropriateness of the recommended sanction, Kinsella contends
that this Court should approve the referee’s recommended discipline. The Bar,
conversely, contends that this Court should disapprove the referee’s recommended
sanction and instead impose a suspension of at least ninety-one days. We
conclude, based on the extensive mitigation presented in this case, Kinsella’s
remorse, and the referee’s finding that Kinsella voluntarily sought out, consented
to, and is making progress in treatment with FLA, that a three-year suspension,
rather than disbarment, is the appropriate sanction.
The standard of review for a referee’s recommendation as to discipline is as
follows:
In reviewing a referee’s recommended discipline, the Court’s
scope of review is broader than that afforded to the referee’s findings
of fact because, ultimately, it is the Court’s responsibility to order the
appropriate sanction. See Fla. Bar v. Anderson, 538 So. 2d 852, 854
(Fla. 1989); see also art. V, §15, Fla. Const. However, generally
speaking, this Court will not second-guess the referee’s recommended
discipline as long as it has a reasonable basis in existing caselaw and
the [Florida] Standards for Imposing Lawyer Sanctions. See Fla. Bar
v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).
Fla. Bar v. Ratiner, 46 So. 3d 35, 39 (Fla. 2010).
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In determining the appropriate sanction in this case, the referee considered
several Standards for Imposing Lawyer Sanctions. Standard 5.1 provides that
disbarment is appropriate when a lawyer engages in intentional conduct involving
dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on
the lawyer’s fitness to practice law. Standard 5.12 provides that suspension is
appropriate when a lawyer knowingly engages in conduct not included in the
standard for disbarment and that seriously adversely reflects on the lawyer’s fitness
to practice law. Lastly, Standard 5.13 provides that a public reprimand is
appropriate when a lawyer knowingly engages in any other conduct involving
dishonesty, fraud, deceit, or misrepresentation that adversely reflects on the
lawyer’s fitness to practice law.
We conclude that Standard 5.12 is the most appropriate standard for this
case. The critical distinction between Standard 5.12, which calls for suspension,
and Standard 5.1, which provides for disbarment, is whether the conduct “seriously
adversely reflects on the lawyer’s fitness to practice law.” Fla. Stds. Imposing
Law. Sancs. 5.1. In this case, both the State Attorney and the referee found that
Kinsella’s conduct warranted mercy. Although Kinsella was originally charged
with grand larceny, a felony, she was allowed to enter a plea to petit theft, a
misdemeanor, and received probation with adjudication withheld. Additionally,
despite Kinsella’s three acts of theft, the referee concluded that only a ten-day
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suspension was appropriate in this case. While we disagree with the length of
suspension recommended by the referee, we agree that suspension, rather than
disbarment, is appropriate.
The referee found three aggravating factors—(1) Kinsella acted with a
dishonest or selfish motive; (2) she engaged in a pattern of misconduct; and (3) she
committed multiple offenses—and seven mitigating factors: (1) Kinsella did not
have a prior disciplinary record; (2) she suffered personal or emotional problems
not related to alcohol or drug abuse; (3) she made a timely good faith effort to
make restitution or rectify the consequences of her misconduct; (4) she made a full
and free disclosure to the Bar or had a cooperative attitude toward the proceedings;
(5) she is inexperienced in the practice of law; (6) other penalties or sanctions have
been imposed for the same conduct; and (7) she showed remorse.
This Court has stated: “Like other factual findings, a referee’s findings of
mitigation and aggravation carry a presumption of correctness and will be upheld
unless clearly erroneous or without support in the record. A referee’s failure to
find that an aggravating factor or mitigating factor applies is due the same
deference.” Fla. Bar v. Germain, 957 So. 2d 613, 621 (Fla. 2007) (citation
omitted). Kinsella did not challenge the aggravating factors and in fact admitted
that she understood that what she was doing was illegal; however, the referee also
found that Kinsella fully and freely disclosed her misconduct to the Bar and took
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steps on her own accord, including entering into a contract with FLA, to address
her financial situation.
The case law also supports imposing a lengthy suspension rather than
disbarment in this case. Florida Bar v. Anderson, 594 So. 2d 302 (Fla. 1992), and
Florida Bar v. Del Pino, 955 So. 2d 556 (Fla. 2007), are instructive. In Anderson,
like this case, the attorney misappropriated funds from her employer for personal
use. 594 So. 2d at 303. Anderson pled no contest to three third-degree felonies;
adjudication of guilt was withheld and she was placed on probation for three years.
Id. The referee recommended a three-year suspension; however, the Court found
that disbarment was warranted. Id. at 304. Like Kinsella, Anderson
misappropriated her employer’s funds, and her crimes were not committed in her
capacity as an attorney. Unlike Kinsella, however, Anderson was ultimately
convicted of three counts of felony theft, while Kinsella pled no contest to one
count of misdemeanor theft, with adjudication withheld. Again, it is significant
that the State chose not to pursue the more severe sanction of grand larceny against
Kinsella.
In Del Pino, the attorney was suspended for three years after she participated
in the fraudulent transfer of a condominium, which resulted in a conviction for
mail fraud and tax evasion. 955 So. 2d at 558-59. Del Pino pled guilty to both
charges and was sentenced to three years of probation with conditions. Id. at 559.
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In imposing a three-year suspension, the Court noted several mitigating factors
significant to its analysis including evidence of an emotionally and physically
abusive romantic relationship. Id. at 562. Unlike Del Pino, this case involves less
severe crimes; however, similar to Del Pino, the referee found multiple,
compelling mitigating factors and decreased Kinsella’s recommended sanction
accordingly.
Florida Bar v. De la Torre, 994 So. 2d 1032 (Fla. 2008), is also helpful. In
De la Torre, the Court held that engaging in felonious conduct warrants suspension
from the practice of law, even where adjudication of guilt is withheld. 994 So. 2d
at 1034. The attorney in that case entered no contest pleas to five criminal offenses
(possession of cocaine, battery on a law enforcement officer, resisting an officer
without violence, unlawful possession of cannabis, and possession of drug
paraphernalia), two of which were felonies; adjudication of guilt was withheld. Id.Like this case, none of the criminal actions in De la Torre were related to the
practice of law. Finding substantial mitigation, the referee recommended that De
la Torre be suspended from the practice of law for ninety-one days followed by
three years of probation. Id. The Court found De la Torre’s evidence in mitigation
significant but ultimately imposed an eighteen-month suspension from the practice
of law. Id. at 1037-38.
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Although this Court has begun to impose harsher sanctions for attorney
misconduct, even this Court’s most recent cases do not justify disbarring Kinsella.
See Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002). For example, this Court
disbarred attorney Randall Lawrence Gilbert for negligently supervising an
employee who stole millions of dollars from Gilbert’s trust account. Fla. Bar v.
Gilbert, 346 So. 3d 196 (Fla. 2018). In concluding that disbarment was the
appropriate sanction in Gilbert, this Court held, “As an attorney, he owed a duty to
the public and to his clients to safeguard their money. Instead, he flouted the
system by lying to a federal probation officer and allowing a nonattorney to hold
himself out as a law school graduate and a certified public accountant (CPA).” Id.
at 197. While her misconduct was inexcusable, Kinsella’s theft did not involve
client funds and was unrelated to the practice of law. Moreover, Kinsella
cooperated with authorities in the aftermath of her crime.
The Court has stated that it expects “members of The Florida Bar to conduct
their personal business affairs with honesty and in accordance with the law.” Fla.
Bar v. Baker, 810 So. 2d 876, 882 (Fla. 2002); see also Fla. Bar v. Hosner, 520 So.
2d 567, 568 (Fla. 1988) (“[L]awyers are necessarily held to a higher standard of
conduct in business dealings than are nonlawyers.”). Here, Kinsella’s flagrant
abuse of the law merits a severe sanction. See, e.g., Fla. Bar v. Hall, 49 So. 3d
1254, 1261 (Fla. 2010).
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However, on the whole, the referee also found substantial mitigation. First,
though Kinsella stole a total of three times, the total amount of her thefts was less
than $1,000. Kinsella pleaded no contest to one count of misdemeanor petit theft,
and the State dismissed the felony grand theft charge and the other misdemeanor
petit theft charge. Additionally, Kinsella successfully completed her one year of
probation in this case and completed all of the other tasks assigned by the court,
including payment of costs, payment of restitution to Kohl’s Department Store,
performance of fifty hours of community service, completion of a Vital Life Skills
Class, and not entering any Kohl’s location. Not even The Florida Bar suggested
that disbarment is the appropriate sanction, arguing in its brief in this Court that a
91-day suspension is the appropriate sanction. Accordingly, given all of these
circumstances, we conclude that the disciplinary sanction of a three-year
suspension, rather than disbarment, is warranted and appropriately serves the three-
pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the
Respondent; and (3) it is severe enough to deter other attorneys from similar
misconduct. See Fla. Bar v. Lawless, 640 So. 2d 1098, 1100 (Fla. 1994).
CONCLUSION
Accordingly, Kinsella is hereby suspended from the practice of law for a
period of three years. Because Kinsella is currently suspended, the suspension is
effective immediately.
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Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Jacqueline Marie
Kinsella in the amount of $1,616.60, for which sum let execution issue.
It is so ordered.
QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., dissents with an opinion, in which LEWIS, J., concurs.
PARIENTE, J., dissents with an opinion.
LEWIS, J., dissents with an opinion.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. THE FILING OF A MOTION FOR REHEARING SHALL
NOT ALTER THE EFFECTIVE DATE OF THIS SUSPENSION.
CANADY, C.J., dissenting.
I agree with Justice Lewis that Kinsella’s misconduct requires disbarment.
There is no reason to believe that a lawyer who has betrayed her employer by
stealing from the employer will not betray her clients by stealing from them. There
should be no place for thieves in The Florida Bar. As explained by Justice Lewis,
Kinsella’s misconduct falls squarely under Standard 5.11, which provides that
disbarment is the appropriate sanction. We should follow that standard; Kinsella
should be disbarred for her multiple acts of theft from her employer.
I dissent from the imposition of a sanction less than disbarment.
LEWIS, J., concurs.
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PARIENTE, J., dissenting.
I begin with the acknowledgment that the conduct of Ms. Kinsella, freshly
out of law school and having passed the Florida Bar Exam, cannot be excused
when she stole $140, $100, and $520 from Kohl’s Department store where she was
working over a two-week period. But, as Kinsella does not attempt to justify her
actions, has shown extreme remorse, and never contested the charges filed by The
Florida Bar, the only question in this case is the appropriate sanction: Should
Kinsella be given a ten-day suspension, as recommended by the referee who
observed Ms. Kinsella, a ninety-one day suspension as requested by The Florida
Bar, a three-year suspension as held by the majority of this Court, or disbarred as
urged by the dissent?
I agree with the per curiam opinion that any act of theft requires a sanction
more severe than a short nonrehabilitative suspension. In fact, Ms. Kinsella has
already been suspended by order of this Court.2 However, the circumstances of
this case do not compare to other theft cases where this Court has imposed three-
year suspensions or disbarment. A three-year suspension is simply
2. Order to Show Cause (Fla. Feb. 15, 2018) (“[T]he Court has determined
that Respondent should receive at least a 91-day rehabilitative suspension. . . .
[T]he Court hereby commands Jacqueline Marie Kinsella to show cause on or
before March 19, 2018, why the referee’s recommended sanction should not be
disapproved and a more severe sanction, up to and including disbarment, be
imposed.”).
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disproportionate to the conduct in this case and I would impose the sanction sought
by The Florida Bar—a ninety-one day suspension.
While certainly not dispositive, the prosecutor in Kinsella’s criminal case
determined that Kinsella should be able to enter a no contest plea to only the first-
degree misdemeanor charge of petit theft. Additionally, the prosecutor requested
that adjudication be withheld and the court impose probation with specific
conditions—all of with which Kinsella complied.3 Additionally, the referee found
multiple mitigating factors, which the per curiam opinion acknowledges stating,
“In this case, both the State Attorney and the referee found that Kinsella’s conduct
warranted mercy.” Per curiam op. at 6. However, the per curiam opinion uses this
and other mitigating factors to justify the imposition of a three-year suspension
rather than disbarment. I, conversely, would conclude that the extensive mitigation
in this case warrants the imposition of a rehabilitative suspension of one year,
which is far closer to the Bar’s request for a ninety-one day suspension.
While neither the referee’s recommendations nor The Florida Bar’s
requested sanctions are binding on this Court, in my view, they should not be
3. In order for the trial court to agree to adjudication being withheld, there
would have been a finding that “the defendant is not likely again to engage in a
criminal course of conduct and that the ends of justice and the welfare of society
do not require that the defendant presently suffer the penalty imposed by law.”
§ 948.01(2), Fla. Stat. (2018).
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ignored. I know this Court has become increasingly tough on attorneys who
violate the Rules Regulating the Florida Bar, but we must keep in mind the facts
and circumstances of each individual case and the purposes of Florida Bar
discipline.
A Three-Year Suspension Is Not Warranted
As noted by the per curiam opinion, the referee found seven mitigating
factors, including that Kinsella showed remorse, made a timely good faith effort to
make restitution, made a full and free disclosure to the Bar, and had a cooperative
attitude toward the proceedings. In addition, she has taken substantial steps to
avoid problems in the future. All of these factors paint Kinsella as a young
attorney who exercised extremely poor judgment and has taken full responsibility
for her actions. Additionally, though the referee found three aggravating factors,
two of those factors—a pattern of misconduct and multiple acts of misconduct—
arise from the same underlying conduct.
Moreover, in her response, Kinsella indicated that she had spent the majority
of her brief legal career before her suspension volunteering for the Legal Aid
Foundation, “providing legal advice through a helpline to those who cannot afford
a private attorney.” Resp. to Order to Show Cause at 4. Indeed, Kinsella “hopes to
continue work as a legal aid or non-profit attorney when the Court deems [her]
able.” Id. Kinsella “believes this is the best way for her to serve the public.” Id.
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Our case law also supports this conclusion. The cases cited by the per
curiam opinion are distinguishable and consequently unhelpful in this case. First,
the misconduct in all three cases is significantly more egregious than the
misconduct in this case. For example, the attorney in Florida Bar v. Anderson,
594 So. 2d 302 (Fla. 1992), pleaded no contest to three third-degree felony
charges, for which adjudication was withheld, while the attorney in Florida Bar v.
De la Torre, 994 So. 2d 1032, 1033-34 (Fla. 2008), entered no contest pleas to five
criminal offenses, two of which were felonies, and adjudication was withheld.
Anderson, 594 So. 2d at 303; De la Torre, 994 So. 2d at 1033-34. Conversely, in
this case, Kinsella pled no contest to one misdemeanor charge of petit theft and
adjudication of guilt was withheld. Additionally, the attorney in Florida Bar v.
Del Pino, 955 So. 2d 556 (Fla. 2007), was suspended for three years following a
conviction for mail fraud and tax evasion. Id. at 558. Certainly Kinsella stealing
less than $1,000 from her employer, while serious, is not the same kind or degree
of misconduct as that of Del Pino.
Indeed, there does not appear to be a case from this Court that is directly on
point. However, examining the conduct in the following cases illustrates that
Kinsella’s misconduct does not rise to that of attorneys who have historically been
suspended from the practice of law for three years. Kinsella’s misconduct is
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considerably less severe than that of other attorneys who have received equal or
even lesser sanctions.
For example, in Florida Bar v. Arcia, 848 So. 2d 296 (Fla. 2003), this Court
held that an attorney’s theft of funds from his law firm employer warranted a three-
year suspension, followed by a three-year probationary period. Specifically, while
Arcia was employed as an associate at the law firm of Zarco and Pardo, P.A., he
formed his own one-man law firm, which was in direct competition with Zarco and
Pardo, P.A. Id. at 297. Arcia solicited clients from Zarco and Pardo for his own
benefit by intercepting telephone calls directed to the firm. Additionally, on
several occasions he deposited fees he had obtained representing Zarco and
Pardo’s clients or prospective clients into his solo-firm’s bank account. Id. Arcia
admitted “to depriving the firm of about $62,000 in legal fees. During the 1 ½ to
2-year span of Arcia’s misconduct, the firm paid him bonuses.” Id.Likewise, in Florida Bar v. Winters, 104 So. 3d 299 (Fla. 2012), two
attorneys participated in the following misconduct:
Winters and Yonker made secret plans to leave the Mulholland Firm
and begin practicing together, and that in the process, Winters and
Yonker: (1) themselves and through a former paralegal for the
Mulholland Firm, solicited Mulholland Firm clients to terminate
representation by the Mulholland Firm and be represented by Winters’
and Yonker’s new firm; (2) made misrepresentations to the
Mulholland Firm and to Mulholland Firm clients; (3) made copies of
and took possession of Mulholland Firm client files without
authorization; and (4) improperly used a third attorney’s name, who
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never actually joined the new firm, in their new firm name on
documents.
Id. at 300. Ultimately, the Court imposed a ninety-one day suspension for Winters
and a sixty-day nonrehabilitative suspension for Yonker. Id. at 303.
Most recently, this Court imposed a one-year suspension for an attorney who
converted $500 in client funds for his own use. See Fla. Bar v. Wynn, 210 So. 3d
1271, 1272 (Fla. 2017). In doing so, we noted that “misuse or misappropriation of
client funds is one of the most serious offenses a lawyer can commit.” Id. at 1274.
Likewise, just this year, we approved an eighteen-month suspension for an
attorney who knowingly signed and provided to a lender a real estate closing
statement containing incorrect statements about closing funds. Fla. Bar v. Perez,
No. SC16-111, 2018 WL 2731612, at *1 (Fla. Jun. 7, 2018). In that case, Perez
prepared a closing statement reflecting that approximately $3 million in cash
would be brought to the closing by the buyer, when, in fact, the total of the buyer’s
contribution consisted of $1.5 million in cash and a promissory note in favor of the
seller of approximately $1.5 million. Order at 1, Fla. Bar v. Perez, No. SC16-111
(Fla. Oct. 20, 2017) (disapproving referee’s report and remanding back to the
referee for additional proceedings). Perez acknowledged that he purposely
reflected the down payment inaccurately, but did not see a problem with doing so
because he was directed to do so by the loan officer. Id. Certainly, Kinsella’s acts
of dishonesty are not so much more egregious than Perez’s to warrant double the
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length of suspension. Additionally, there is far more mitigation in this case than
was present in Perez.
Disbarment Is Not Warranted
I also disagree with the dissenting views that disbarment is warranted in this
case and take particular issue with the assertion of Justice Lewis that “[t]he
imposition of a three-year suspension, rather than disbarment, is a black eye on this
Court’s attorney misconduct jurisprudence.” Dissenting op. at 22 (Lewis, J.); see
also dissenting op. at 12 (Canady, C.J.). For obvious reasons, the facts in this case
are far from analogous to cases where we have disbarred lawyers for trust account
violations. Indeed, the majority of the cases upon which Justice Lewis relies
involve just that—trust account violations, misappropriation of client funds, or
other kinds of theft related to the practice of law. See dissenting op. at 22-24
(Lewis, J.).4 While Kinsella’s conduct cannot and should not go unpunished, this
4. The dissenting opinion of Justice Lewis relies on Anderson, because the
theft there was not related to the practice of law. 594 So. 2d at 303. Indeed,
Anderson involved an attorney who “converted publicly owned funds to pay off
her personal credit-card debt” while working as an executive assistant with the
Tampa Housing Authority. Id. However, in that case, The Florida Bar specifically
requested disbarment and the referee recommended a three-year suspension. Id. at
302. Additionally, and significantly, this Court held that it was the theft of public
funds that made it analogous to the theft of trust account funds. Id. at 303. In
addition, the illegal conduct in that case was far more sophisticated as the attorney
“forged a signature on two checks and submitted three Housing Authority money
orders in payment for debts [she] owed” her credit card company. Id. The total
amount involved in that case was $4,500 in public money. Id.- 19 -
case of a young woman who made a serious mistake unrelated to the practice of
law, has made full restitution, and has exhibited extreme remorse is not
comparable to cases involving misuse of client or law firm funds where this Court
has disbarred attorneys.
In fact, the three-year suspension that the Court imposes is the longest
rehabilitative suspension before disbarment, which is a five-year period and then
requires the attorney to retake The Florida Bar examination and demonstrate
rehabilitation. This harsh sanction requires that Kinsella would have to apply to
The Florida Bar for reinstatement following the suspension and prove significant
rehabilitation. See R. Regulating Fla. Bar 3-5.1(e). There is no guarantee that
Kinsella would be reinstated, especially where there were acts of dishonesty. See
R. Regulating Fla. Bar 3-7.10(f)(1) (“A record manifesting a deficiency in the
honesty, trustworthiness, diligence, or reliability of a petitioner may constitute a
basis for denial of reinstatement.”). Finally, Kinsella would not be reinstated
absent positive action showing rehabilitation and “personal assurances, supported
by corroborating evidence, of a desire and intention to conduct [herself] in an
exemplary fashion in the future.” See R. Regulating Fla. Bar 3-7.10(f)(3)(E).
CONCLUSION
The Court’s imposition of a three-year suspension is simply not supported
by this Court’s precedent. Moreover, I cannot agree that the harsh sanction
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imposed in this case serves the three-pronged purpose of attorney discipline: (1) it
is fair to society; (2) it is fair to the respondent; and (3) it is severe enough to deter
other attorneys from similar misconduct. See Fla. Bar v. Lawless, 640 So. 2d
1098, 1100 (Fla. 1994).
Kinsella was punished in a criminal court of law and has paid her debt to
society. Both the State Attorney and the referee concluded that Kinsella’s
misconduct did not warrant a severe sanction. Even the Bar has not advocated for
a suspension greater than ninety-one days in this case. In light of all of these
findings, it is clear that the Court’s imposition of a three-year suspension is
unnecessary and overly harsh. And, certainly, the findings do not justify the
dissents’ view that disbarment is warranted. Thus, I would follow the Bar’s
recommendation and impose a suspension ranging anywhere from ninety-one days
to one year.
Accordingly, I dissent.
LEWIS, J., dissenting.
I dissent to this Court’s imposition of a mere three-year suspension. In my
view, Kinsella’s unethical conduct warrants disbarment. Attorneys who commit
the egregious act of theft or misappropriating monies are appropriately disbarred.
See, e.g., Fla. Bar v. Anderson, 594 So. 2d 302 (Fla. 1992). The majority attempts
to minimize Kinsella’s conduct as somehow soluble given her student loan debt. I
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find such flimsy mollifications to be unavailing. The “extensive” mitigation cited
by the majority does not and cannot overcome the serious nature of the offenses
that Kinsella committed. See majority op. at 5.5 The imposition of a three-year
suspension, rather than disbarment, is a black eye on this Court’s attorney
misconduct jurisprudence. The overwhelming majority of cases involving theft
have resulted in disbarment. See, e.g., Fla. Bar v. Spear, 887 So. 2d 1242 (Fla.
2004); Fla. Bar v. Shanzer, 572 So. 2d 1382 (Fla. 1991). The majority’s sanction
of suspension is not authorized under the Florida Standards for Imposing Lawyer
Sanctions (“the Standards”) and does not have a reasonable basis in existing case
law.
Kinsella was employed at Kohl’s Department Store and was entrusted with
handling the store’s cash register. The fact that none of the stolen funds were
related to the practice of law is irrelevant; Kinsella stole from those who entrusted
her to handle money. See Fla. Bar v. Arcia, 848 So. 2d 296, 300 (Fla. 2003)
(“[F]or purposes of attorney discipline, theft of firm funds is serious enough to
warrant disbarment under most circumstances.”). Further, Kinsella was entrusted
with handling Kohl’s money in the same way that she would be entrusted to handle
5. To this point, the majority’s characterization of Kinsella’s post-arrest
conduct as constituting “substantial” mitigation is misguided. An individual’s
completion of probation should not be characterized as “substantial” mitigation.
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client funds; and, where conversion of client funds is concerned, the standards are
clear:
4.11 Disbarment is appropriate when a lawyer intentionally or
knowingly converts client property regardless of injury or potential
injury.
Fla. Stds. Imposing Law. Sancs. 4.1; see also Fla. Bar v. Bloom, 972 So. 2d 172,
178 (Fla. 2007) (holding disbarment was the appropriate sanction for misconduct
that included misappropriation of funds and criminal charges of theft).
Likewise, Standard 5.1 provides that disbarment is appropriate when a
lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer’s fitness to
practice law. Fla. Stds. Imposing Law. Sancs. 5.11 (“Disbarment is appropriate
when . . . a lawyer engages in . . . theft.”). This Court has repeatedly held that
misuse of funds is one of the most serious offenses a lawyer can commit and that
disbarment is presumed to be the appropriate punishment. Shanzer, 572 So. 2d at1383 (citing Fla. Bar v. Farbstein, 570 So. 2d 933 (Fla. 1990); Fla. Bar v.
Newman, 513 So. 2d 656 (Fla. 1987)); see also Fla. Bar v. Spears, 786 So. 2d 516(Fla. 2001) (disbarment was warranted sanction for attorney who misappropriated
client funds while under investigation for other similar misconduct); Fla. Bar v.
Travis, 765 So. 2d 689, 691 (Fla. 2000) (disbarment was warranted for deliberately
misappropriating clients’ funds over a substantial period of time and noting that
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“[t]he presumption of disbarment is exceptionally weighty when the attorney’s
misuse is intentional”); Fla. Bar v. Fitzgerald, 541 So. 2d 602, 606 (Fla. 1989)
(disbarment ordered where attorney misappropriated trust funds despite unrebutted
evidence of attorney’s rehabilitation). Here, Kinsella stole money from Kohl’s
cash registers on three separate occasions. She was later arrested and charged with
felony grand larceny. Thus, the presumptive sanction under the Standards is
disbarment, not suspension.
Again, the fact that Kinsella’s theft from her employer was not related to the
practice of law is irrelevant. In my view, Justice Pariente’s attempt to draw
distinctions between where criminal conduct occurs and different levels of criminal
sophistication is fanciful at best. An individual physically removing money from a
cash register and an individual conducting an electronic credit card scam are both
thieves. Further, the notion that Kinsella’s conduct is not comparable to other
cases involving misuse of client or law firm funds is severely misguided. Attempts
to distinguish thefts related or unrelated to the practice of law ignore the common
denominator at issue—theft. A thief is a thief. Kinsella’s conduct was dishonest
and unlawful and hollow explanations pointing to an individual’s circumstances
cannot diminish the fact that such a deceitful act occurred on three separate
occasions.
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Let it be clear, debt can be no excuse for such egregious conduct—many
recent law school graduates have unresolved debt. Negative public sentiment
toward the legal profession would surely increase if those who make the perilous
mistake of engaging in this type of behavior are not rightly punished. An
individual cannot be both a lawyer and a thief.
This Court has a responsibility to protect the public’s trust and confidence in
the legal profession. Those who are guilty of theft tarnish all of us. To impose
anything other than disbarment is a disservice to Florida’s court system and
democracy. Kinsella’s three-year suspension undermines professionalism and
creates fertile ground for public distrust.
Kinsella should be disbarred. For these reasons, I dissent.
Original Proceeding – The Florida Bar
Joshua E. Doyle, Executive Director, Tallahassee, Florida, Kenneth H. P. Bryk,
Bar Counsel, Orlando, Florida, and Adria E. Quintela, Staff Counsel, The Florida
Bar, Sunrise, Florida,
for Complainant
Jacqueline Marie Kinsella, pro se, Goldenrod, Florida,
for Respondent
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