The Florida Bar v. Erwin Rosenberg , 169 So. 3d 1155 ( 2015 )

Supreme Court of Florida
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No. SC13-2067
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THE FLORIDA BAR,
Complainant,
vs.
ERWIN ROSENBERG,
Respondent.
[May 28, 2015]
PER CURIAM.
We have for review a referee’s report recommending that Respondent Erwin
Rosenberg be found guilty of professional misconduct in violation of the Rules
Regulating the Florida Bar (Bar Rules), and suspended from the practice of law for
ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed
in this opinion, we approve the referee’s findings of fact and recommendations as
to guilt. We disapprove the referee’s recommended sanction, and conclude instead
that a one-year suspension is appropriate.
FACTS
In October 2013, The Florida Bar (Bar) filed a complaint against
Respondent Rosenberg, alleging that he engaged in misconduct in violation of the
Bar Rules. A referee was appointed to consider the matter. In the proceedings
before the referee, Rosenberg filed a Motion for Summary Judgment. The Bar
filed a response in opposition to Rosenberg’s motion, as well as a cross-motion for
summary judgment. After considering these filings, the referee entered an “Order
Denying Respondent’s Motion for Summary Judgment and Granting
Complainant’s Cross-Motion for Summary Judgment.” In the order, the referee
found that the facts as alleged by the Bar were undisputed, that Rosenberg failed to
present any evidence to show material facts in dispute, and that Rosenberg’s legal
arguments were without merit. The referee has submitted his report for the Court’s
review (based on his order granting summary judgment), in which he made the
following findings and recommendations.
In 2006, Rosenberg was hired to represent several businesses (the clients)
that were being sued in the circuit court in Miami-Dade County for breach of
contract; he entered appearances on behalf of the clients in March and April 2006.
Prior to Rosenberg’s appearance in the case, in December 2005, counsel for the
plaintiffs had served on the clients a request for production, requesting that they
produce a number of documents. When the clients did not comply, on March 1,
2006, the circuit court judge entered an order granting the plaintiffs’ motion to
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compel production and ordering the clients to produce the requested documents
within twenty days. The clients also did not comply with this order. The plaintiffs
then filed a motion for contempt and sanctions. In April 2006, the circuit court
judge granted the motion as to sanctions but denied the motion as to contempt, and
ordered the clients to produce the documents within five days.
In September 2006, the case against the clients was transferred to the circuit
court in Palm Beach County, before Judge Jonathan Gerber. At that time, the
clients still had not complied with the plaintiffs’ December 2005 request for
production. In March 2007, the plaintiffs filed a motion to compel production, for
contempt, and for sanctions. Judge Gerber held a hearing on the motion in April
2007. Rosenberg appeared at the hearing and objected to the plaintiffs’ request for
production on the grounds that the documents sought were not reasonably
calculated to lead to admissible evidence. Judge Gerber overruled the objection,
granted the plaintiffs’ motion to compel, and ordered the clients to produce the
requested documents within fifteen days. Thereafter, on May 2, 2007, Rosenberg
filed a motion for rehearing, a motion for a protective order, a request for an in
camera inspection, and a stay for appellate certiorari review. In these motions,
Rosenberg asserted that the documents sought by the plaintiffs contained trade
secrets or confidential business information, and that disclosure of the documents
would harm his clients. On May 29, Judge Gerber held a hearing; the judge
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ultimately denied the motions and overruled Rosenberg’s trade secrets and
confidentiality objections. Judge Gerber held that, because Rosenberg had not
raised these arguments in the more than one year that he represented the clients, the
objections were waived.
In June 2007, the plaintiffs filed what was their fifth motion to compel
production of documents, as well as a motion for contempt and sanctions. Judge
Gerber held a hearing on this motion. At the hearing, Rosenberg maintained that
he had produced some documents partially responsive to the plaintiffs’ request,
and that he had provided all of the documents given to him by the clients. In
response, the plaintiffs argued that the documents were duplicates of ones already
produced, that the documents were not provided in any particular order, and that
Rosenberg had not served a written response to the request to produce, as required
by Florida Rule of Civil Procedure 1.350. Judge Gerber granted the plaintiffs’
motion and ordered Rosenberg and the clients to produce the requested documents
within eight days; the judge also granted the plaintiffs’ request for sanctions and
warned Rosenberg and the clients that if they did not comply, he would consider
striking their pleadings.
After the circuit court issued its order, Rosenberg filed a written response to
the plaintiffs’ request for production on June 28, 2007. In the response, Rosenberg
again objected to production on the grounds that the plaintiffs’ requests were
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overbroad and burdensome, and that the documents requested would violate his
clients’ trade secret and business confidentiality privileges. The plaintiffs then
filed their sixth motion to compel, for contempt, and sanctions. On July 24, 2007,
Judge Gerber held a hearing and granted the motion. The judge further ordered
that an evidentiary hearing be held on an order to show cause why Rosenberg
should not be sanctioned for bad faith conduct.
Rosenberg withdrew as counsel for the clients on July 30, 2007. On August
7, 2007, the circuit court entered an order setting a hearing on the show cause order
for August 24. Rosenberg filed a motion to dismiss the order to show cause,
alleging that the court failed to provide sufficient notice or opportunity to be heard;
Judge Gerber denied this motion.
At the show cause hearing on August 24, 2007, Rosenberg declined to
testify on his own behalf. He was, however, called as an adverse witness by
counsel for the plaintiffs. Following the hearing, on September 14, 2007, Judge
Gerber entered a written “Order Imposing Attorney’s Fees for Bad Faith Conduct.”
In this order, Judge Gerber found that Rosenberg acted in bad faith:
The most egregious bad faith action which Mr. Rosenberg committed
was re-stating in his June 28 written response the same objections
which this Court already had overruled, without Mr. Rosenberg taking
any further action to comply with Plaintiffs’ requests for production or
with this Court’s orders. Mr. Rosenberg’s explanation that he
interpreted rule 1.350 as saying that he merely should repeat the
overruled objections “as a zealous advocate” . . . simply defies
common sense. Such flouting of this Court’s orders is the very
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definition of bad faith conduct. This Court finds Mr. Rosenberg to be
an intelligent person, and this Court does not believe that the gravity
of his repeated misconduct can be accepted as merely an error in
judgment or ignorance of the rules.
Accordingly, Judge Gerber held that the plaintiffs were entitled to recover from
Rosenberg their attorney’s fees relating to all motions to compel filed after
Rosenberg entered his appearance in the case. The Fourth District Court of Appeal
affirmed the circuit court’s order in January 2009. See Rosenberg v. Gaballa, 1 So.
3d 1149 (Fla. 4th DCA 2009). The referee in this case found that Rosenberg still
has not paid any portion of the attorney’s fee award.
Based on these facts, the referee recommends that Rosenberg be found in
violation of the following Bar Rules: 4-1.1 (a lawyer shall provide competent
representation to a client); 4-3.4(d) (a lawyer must not in pretrial procedure, make
a frivolous discovery request or intentionally fail to comply with a legally proper
discovery request by an opposing party); and 4-8.4(d) (a lawyer shall not engage in
conduct in connection with the practice of law that is prejudicial to the
administration of justice).
The referee found four aggravating factors in this case: Rosenberg engaged
in multiple offenses, and multiple instances of the same offense; he has refused to
acknowledge the wrongful nature of his misconduct; he has substantial experience
in the practice of law; and he has failed to pay any portion of the attorney’s fee
award imposed against him. The referee also considered two mitigating factors:
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Rosenberg has no prior disciplinary history; and he has already received a
monetary sanction imposed by the circuit court for his bad faith conduct.
In making a recommendation as to the sanction, the referee noted:
The Referee has strong doubts about the Respondent’s fitness to
practice law. It is obvious Respondent possesses above-average
intelligence. It appears, however, that he lacks either the common
sense or the intellectual honesty to distinguish appropriate and rational
arguments from inappropriate and irrational arguments. The ability to
read precedent, while a necessary condition for practicing law, is not
sufficient. A lawyer must be able to apply legal principles correctly
and honestly. There are times when a lawyer must yield to the facts,
precedent, or court orders. Respondent appears incapable of
discerning when to yield a legally unsupportable position.
Although the report indicates the referee believed a lengthier suspension was
warranted, based on the Florida Standards for Imposing Lawyer Sanctions and case
law he recommends that Rosenberg be suspended from the practice of law for
ninety-one days. Additionally, the referee recommends that Rosenberg not be
reinstated to practice until he can demonstrate rehabilitation by addressing
“whatever underlying psychological or emotional issues may exist which appear to
interfere with his ability to objectively evaluate facts, precedents, and court
orders,” and until he has paid the sanctions imposed in Judge Gerber’s September
2007 order.
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Before this Court, Rosenberg seeks review of the referee’s order granting
summary judgment in favor of the Bar,1 as well as the referee’s findings of fact and
recommendations as to guilt. The Bar has filed a cross-notice of review,
challenging the referee’s recommended sanction. The Bar urges the Court to
disapprove the referee’s recommendation for a ninety-one day suspension and
instead suspend Rosenberg from the practice of law for one year.
ANALYSIS
We first address Rosenberg’s argument that the referee improperly granted
the Bar’s motion for summary judgment. The referee in a disciplinary case has
authority to enter summary judgment on the same basis as in a civil case—when,
as a matter of law, it is apparent from the pleadings and other evidence that there
are no genuine issues of material fact and the moving party is entitled to relief as a
matter of law. See Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006); Fla. Bar
v. Daniel, 626 So. 2d 178, 182 (Fla. 1993). On review of a referee’s report based
on a summary judgment, the standard of review is de novo, with all facts and
inferences viewed in favor of the party against whom the summary judgment has
1. Rosenberg also challenges the referee’s April 4, 2014, “Order Denying
Respondent’s Motion for Rehearing.” In that order, the referee denied
Rosenberg’s motion for rehearing of an order denying his third motion for
disqualification. We have fully considered Rosenberg’s arguments as to this issue,
and we approve the referee’s order on rehearing without further discussion.
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been entered. See Fla. Bar v. Cosnow, 797 So. 2d 1255, 1258 (Fla. 2001). The
party seeking review must point to some disputed issue of fact material to the
referee’s conclusions. Id.
In this case, the referee’s order granting summary judgment, and the findings
of fact contained in the Report of Referee, are largely based on Judge Gerber’s
September 2007 Order Imposing Attorney’s Fees for Bad Faith Conduct. This
Court has held that the referee in a disciplinary proceeding may consider
judgments entered in other tribunals, and may properly rely on such judgments to
support his or her findings of fact. See Fla. Bar v. Gwynn, 94 So. 3d 425, 430 (Fla.
2012). Here, the facts are essentially undisputed. Counsel for the plaintiffs filed a
request for production in December 2005. In the more than a year that passed
between Rosenberg’s appearance in the case in March and April 2006, and when
he withdrew as counsel for the clients in July 2007, Rosenberg did not fully
comply with the plaintiffs’ requests. He also did not comply with the several
circuit court orders directing him (and the clients) to produce the documents
requested. Ultimately, in September 2007, Judge Gerber entered an order
sanctioning Rosenberg for bad faith conduct, and ordered him to pay the plaintiffs’
attorney’s fees. To date, Rosenberg has not complied with this order.
Rosenberg does not dispute that these events occurred. Rather, he contends
that the referee erred in granting the Bar’s motion for summary judgment because
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the referee failed to consider other material facts in dispute. He asserts that the
orders to compel production entered in the circuit court in Miami-Dade County
were non-final because the judge in that circuit never ruled on Rosenberg’s motion
for rehearing and, moreover, that those orders were unenforceable because Miami-
Dade County was not the proper venue for the breach of contract action.
Rosenberg also maintains that the clients produced some of the documents
requested by the plaintiffs, and they timely objected to producing other documents
on the grounds that the information sought was not reasonably calculated to lead to
the discovery of admissible evidence; when Judge Gerber overruled these “scope
of discovery” objections, Rosenberg argues that he then properly raised an
objection based on trade secret and business confidentiality privileges. We note
that Rosenberg has not cited any legal authority for his assertion that the Miami-
Dade judge’s orders to compel were unenforceable after the case was transferred to
Palm Beach County.
But in any event, Rosenberg’s arguments in this regard do not demonstrate
that the referee erred in granting summary judgment. Rather, Rosenberg seeks to
relitigate Judge Gerber’s findings and conclusions as to his bad faith conduct in the
civil litigation. Such arguments are not proper in this disciplinary case. The issue
here is not whether Rosenberg properly raised certain objections to the plaintiffs’
motions to compel production; however, he may not repeatedly continue to raise
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those same objections after they have already been considered and ruled upon, and
he may not refuse to comply with the numerous orders to compel entered by the
circuit courts in both Miami-Dade County and Palm Beach County.
Rosenberg also argues that the referee, in granting summary judgment,
failed to consider that Judge Gerber was biased against him. Rosenberg suggests
that Judge Gerber’s bias is evidenced by the fact that, at the hearing on the order to
show cause why Rosenberg should not be sanctioned, Rosenberg was denied a
meaningful opportunity to refute the accusations of bad faith conduct, and in
particular he was not permitted to cross-examine Judge Gerber. However, the
undisputed facts show that Rosenberg was given notice of the show cause hearing,
he was offered an opportunity to present evidence on his own behalf, and he chose
not to testify.
Accordingly, we conclude that the referee fully considered the undisputed
facts in this case, and we agree that Rosenberg failed to demonstrate material facts
in dispute. We approve the referee’s order granting summary judgment in favor
the Bar, as well as the referee’s findings of fact.
Turning to the referee’s recommendations as to guilt, we conclude that the
undisputed facts amply support the referee’s recommendation that Rosenberg be
found guilty of violating Bar Rules 4-1.1, 4-3.4(d), and 4-8.4(d). See Fla. Bar v.
Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005) (stating that “the referee’s factual
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findings must be sufficient under the applicable rules to support the
recommendations as to guilt.”). Indeed, given the undisputed facts, it is clear that
Rosenberg failed to act competently on behalf of his clients, in violation of Bar
Rule 4-1.1, when he failed to seek documents from his clients after multiple circuit
court orders compelling production of the documents; when he testified at the
show cause hearing before Judge Gerber that he believed he had complied with the
orders to compel production by simply providing the few documents his clients
had given him, without reviewing those documents; when he did not timely file a
written response to discovery, as required by the Rules of Civil Procedure; and
when he continued to raise objections that the circuit court had already considered
and overruled. We agree with the referee that Rosenberg’s conduct displayed “a
lack of knowledge, thoroughness, and preparation in his representation.”
Additionally, the facts as found by the referee demonstrate that Rosenberg
repeatedly failed to comply with numerous circuit court orders compelling
production, in violation of Bar Rule 4-3.4(d). And his failure to comply with these
orders was detrimental to the administration of justice, in violation of Bar Rule 4-
8.4(d).
Rosenberg urges the Court to disapprove the referee’s recommendations as
to guilt on the same grounds that he opposes the referee’s order granting summary
judgment. He also argues that Judge Gerber lacked authority to enter the Order
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Imposing Attorney’s Fees for Bad Faith Conduct because this Court has exclusive
jurisdiction to sanction lawyers for misconduct. Rosenberg’s argument is
unfounded. In Moakley v. Smallwood, 826 So. 2d 221, 226-27 (Fla. 2002), this
Court held that the trial courts possess inherent authority to impose attorneys’ fees
against an attorney for “bad faith conduct.” Finally, Rosenberg challenges the
referee’s recommendations as to guilt because he contends that Bar Rules 4-1.1, 4-
3.4, and 4-8.4(d) are unconstitutionally vague in violation of due process.
However, the Rules of Professional Conduct have consistently been upheld against
vagueness and due process challenges. See, e.g., Fla. Bar v. Von Zamft, 814 So.
2d 385, 388 n.1 (Fla. 2002) (stating with respect to the respondent’s argument that
Bar Rule 4-8.4(d) is unconstitutionally vague: “We reject this claim as being
without merit.”).
Because Rosenberg has failed to show that the referee’s recommendations as
to guilt are unsupported, we approve those recommendations and find Rosenberg
guilty of violating Bar Rules 4-1.1, 4-3.4(d), and 4-8.4(d).
Next, we address the referee’s recommended discipline, a ninety-one day
suspension. In reviewing a referee’s recommended discipline, this 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.
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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 case law
and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v.
Temmer, 753 So. 2d 555, 558 (Fla. 1999).
The referee concluded that Rosenberg’s actions warranted a suspension from
the practice of law; we agree. See Fla. Stds. Imposing Law. Sancs. 4.52
(“Suspension is appropriate when a lawyer engages in an area of practice in which
the lawyer knowingly lacks competence, and causes injury or potential injury to a
client”); 6.22 (“Suspension is appropriate when a lawyer knowingly violates a
court order or rule, and causes injury or potential injury to a client or a party, or
causes interference or potential interference with a legal proceeding”); 7.2
(“Suspension is appropriate when a lawyer knowingly engages in conduct that is a
violation of a duty owed as a professional and causes injury or potential injury to a
client, the public, or the legal system”). However, we find that Rosenberg’s
repeated failures to comply with court orders and his bad faith conduct, together
with the aggravating factors found by the referee, warrant a suspension longer than
ninety-one days. We conclude that a one-year suspension is appropriate.
The referee relied on Florida Bar v. Bloom, 632 So. 2d 1016 (Fla. 1994), as
the basis for his recommended discipline. In that case, Bloom was named as the
defendant in a lawsuit, resulting from his neglect and mismanagement of a real
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estate matter. Bloom failed to timely answer interrogatories in the case, attend
hearings, and pay costs imposed against him based on his failure to answer the
interrogatories. Id. at 1017. When Bloom did not answer the trial court’s order to
show cause, the court entered an order imposing sanctions in the amount of
$16,296. Id. Bloom then failed to answer interrogatories or attend depositions set
in aid of execution of the judgment. Consequently, the trial court entered an order
finding Bloom in indirect criminal contempt. On review, the Court found Bloom
guilty of violating Bar Rules 4-3.4(d) and 4-8.4(d). Id. It held that Bloom’s
“flagrant disregard for the judicial process” warranted a ninety-one day suspension.
Id.
In the present case, the referee stated he believed Rosenberg’s actions
warranted a lengthier suspension. Nonetheless, the referee felt constrained by
Bloom to recommend that Rosenberg be suspended for only ninety-one days.
Although Rosenberg’s misconduct is similar to that in Bloom, the case is
distinguishable. For more than a year, Rosenberg refused to comply with
numerous circuit orders requiring him to produce documents. He also continued to
raise objections to production that had already been considered and ruled on by the
circuit court. Both Judge Gerber and the referee noted concerns as to Rosenberg’s
fitness to practice.
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We must also consider the referee’s findings in aggravation. The referee
found four aggravating factors: Rosenberg engaged in multiple offenses, and
multiple instances of the same offense; he has refused to acknowledge the
wrongful nature of his misconduct; he has substantial experience in the practice of
law; and he has failed to pay any portion of the attorney’s fee award imposed
against him in 2007. It is particularly significant that Rosenberg has refused to
accept the wrongful nature of his misconduct. Rather, he continues to attempt to
relitigate Judge Gerber’s order imposing sanctions. He has not paid any portion of
the sanction entered against him, even though Judge Gerber’s order was affirmed
on appeal in 2009. Moreover, Rosenberg has continued his abusive litigation
practices before both the referee and this Court; he has filed numerous motions,
many of which are procedurally improper and without merit.
Finally, as the Bar has pointed out, since the decision in Bloom, the Court
has moved toward imposing stronger sanctions for unethical and unprofessional
conduct. See Fla. Bar v. Adler, 126 So. 3d 244, 247 (Fla. 2013) (noting that “this
Court has moved towards stronger sanctions for attorney misconduct”); Fla. Bar v.
Rotstein, 835 So. 2d 241, 246 (Fla. 2002) (noting that many of the cases cited by
the respondent were inapplicable “because the cited cases are dated and do not
reflect the evolving views of this Court” and that “[i]n recent years, this Court has
moved towards stronger sanctions for attorney misconduct”). Thus, we conclude
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that the referee’s recommendation for a ninety-one day suspension is not
appropriate. We find instead that a one-year suspension is warranted.
CONCLUSION
Accordingly, Respondent Erwin Rosenberg is hereby suspended from the
practice of law for one year. Additionally, he shall not be reinstated to the practice
of law until he complies with the terms and conditions set forth in the Report of
Referee. The suspension will be effective thirty days from the date of this opinion
so that Rosenberg can close out his practice and protect the interests of existing
clients. If Rosenberg notifies this Court in writing that he is no longer practicing
and does not need the thirty days to protect existing clients, this Court will enter an
order making the suspension effective immediately. Rosenberg shall fully comply
with Rule Regulating the Florida Bar 3-5.1(h). Further, Rosenberg shall accept no
new business from the date this opinion is filed until he is reinstated.
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Erwin Rosenberg in
the amount of $3,243.39, for which sum let execution issue.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and
PERRY, JJ., concur.
LEWIS, J., concurs in result.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.
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Original Proceeding – The Florida Bar
John F. Harkness, Jr., Executive Director and Adria E. Quintela, Staff Counsel,
The Florida Bar, Tallahassee, Florida, and Tonya LaShun Avery, Bar Counsel, The
Florida Bar, Miami, Florida,
for Complainant
Erwin Rosenberg, pro se, Miami Beach, Florida,
for Respondent
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