In March 2019, the Florida Supreme Court rendered The Florida Bar v. Vujin, No. SC17-1949. There, the Court accepted the findings of the referee, but declined to adopt the recommended sanction. Instead, the Court permanently disbarred the attorney. The case is worthy of consideration on two points.
As a matter of foundation, when there is a complaint regarding a member of The Florida Bar, a decision may be made to conduct a proceeding. In those instances, a “referee,” a constitutional judge, is appointed to conduct proceedings, determine the facts of the allegation(s) and defense(s), to draw conclusions regarding the application of Bar rules, and to make recommendations regarding disposition.
The complaint resulted from a civil lawsuit in which the attorneys apparently had discussions regarding settlement or compromise. Mr. Vujin sent correspondence by mail and email demanding “$9000.00 Plus Attomey's Fees within seven days, $13,000.00 Total,” from Mr. Touil. And, such demands are mailed all day every day in a variety of disputes (some of which are actively litigated and others that are not).
This compromise demand included more, however. It “presented threats of criminal charges in order to obtain an advantage” in compromising the “civil dispute.” Essentially, the “letter discussed several alleged criminal statutes,” and stated that Mr. Touil (the defendant) would "most likely face deportation for your obvious commission of several aggravated felonies."
The letter made clear that unless the case was resolved, compromised for the $13,000, that “my clients will have no other choice but to report you to the authorities and take you to Court.” The letter closed with a “final threat”: "Your failure to comply with the law in this matter will have disastrous, irreparable consequences in one week." So, a threat and a deadline.
The attorney’s defense against the Bar complaint was essentially that only if the “sole intent is to gain an advantage in a civil proceeding,” (emphasis added) is such a communication forbidden. Also, because the lawyer believed that his “clients never contemplated a civil resolution here," the Bar rule was not applicable and his statements were not actionable. He seems to believe that the rule becomes effective only after a civil proceeding is filed, or subjectively is contemplated. The referee was unpersuaded.
The referee concluded that the attorney had violated Rule 4-3.4(g)(“A lawyer must not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”) After review of various authorities, and the presence of a “prior disciplinary history” of this attorney, the referee concluded that the attorney “is either not willing or not capable of conducting himself in a professional manner.” That, the referee said posed “a threat to the public and/or the legal system.”
An interesting aside is the referee's description of multiple “aggravating factors” including past behavior, pattern of conduct, and motive. Of particular note was the lawyer “failing to acknowledge the wrongfulness of the conduct.” And, in seeking to delay the proceedings, the attorney "in his untimely motion, . . . continues the same pattern of scandalous, outrageous, and unfounded attacks on his prior counsel, opposing parties, and opposing counsel,” that had been noted by the referee in a previous disciplinary case involving the attorney.
Upon receipt of the report, the Supreme Court of Florida (SCOF) issued an order to show cause (an opportunity for the attorney to address the referee's conclusions). The attorney elected not to respond to that order. Then on March 22, 2019, the Court “approve(d) the referee’s findings of fact and recommendations as to guilt.” Instead of suspending the attorney immediately, pending consideration of the recommendation of disbarment, the unanimous Court disbarred the attorney permanently and ordered the attorney to reimburse The Florida Bar for the cost of the proceedings.
The case reminded me of a presentation I observed some years ago at an Inns of Court meeting. There was a discussion of making threats of criminal prosecution to encourage the settlement of a case. I was surprised then that several seasoned attorneys expressed surprise that the Rules Regulating The Florida Bar preclude such threats. There was discussion among attendees about innuendo and discussion to suggest such potentials without making threats. I was disappointed in the seeming acquiescence of those attorneys regarding this patently inappropriate behavior.
I was also reminded of the news coverage that has recently brought to light allegations of immigration law becoming implicated in workers’ compensation matters. That is discussed in Criticism of Enforcing the Law (August 2017), The Forgotten 2014 Supreme Court Workers' Compensation Case (November 2014), and Kansas Cannot Prosecute Identity Theft (September 2017).
Why is Vujin worthy of consideration? First, every lawyer should know that it is inappropriate to threaten criminal action for the purpose of obtaining an advantage in a civil matter. This is true whether the civil matter has been filed, is imminent, or even if it is merely seen by the Court as a probable outcome if discussions fail. The standard is not "solely," and there is no "bright line" that allows such behavior to some point, and then forbids it once a lawsuit is filed. It would appear that workers' compensation cases are a "civil matter," though some appellate decisions have case doubt upon that, particularly in the application of the Supreme Court's Uniform Guidelines for Taxation of Costs.
The second point is perhaps more elementary. In Vujin, the SCOF was provided a report that recommended serious sanctions. The Court provided Mr. Vujin an opportunity to refute and dispute, the Order to Show Cause. Instead of making a case for leniency, instead of expressing acknowledgment and regret, he elected not to respond. He elected not to "show cause." Certainly, it is possible that a response would not have been efficacious. But, when an adjudicatory body, be it a judge or court, affords someone the opportunity to speak, to explain, or to seek accommodation, it is highly recommended that the person respond.
Lawyers can benefit from reading Vujin. However, it is probable that the benefits of understanding the preclusion of lawyers engaging in such threats would be of some benefit to a few litigants who are not lawyers. Those clients might be benefited by knowing the constraints of professionalism and prohibitions under which attorneys must practice. Those clients might benefit from understanding that, despite their own desires, there are things lawyers cannot, and should not, do.
