IN THE SUPREME COURT OF FLORIDA (Before a Referee)

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, Supreme Court Case No. SC TFB File Nos. v ,348 (12A) ,420 (12A) PAUL ANTHONY PYSCZYNSKI, ,658 (12A) ,776 (12A) Respondent ,859 (12A) ,887 (12A) / I. SUMMARY OF PROCEEDINGS REPORT OF REFEREE Pursuant to the undersigned being duly appointed as referee to conduct disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the following proceedings occurred: On May 2, 2014, The Florida Bar filed its Complaint against Respondent. On July 2, 2014, a case management conference was conducted, Jodi Anderson Thompson appeared on behalf of the Bar. Respondent failed to appear or file a response. The Bar filed a motion for default which was heard on July 17, Respondent failed to appear for the hearing or file a response to the motion for default. A default was entered on July 17, 2014, and a sanctions hearing followed. All items properly filed including pleadings, transcripts, exhibits in evidence, and

2 the report of referee constitute the record in this case and are forwarded to the Supreme Court of Florida. II. FINDINGS OF FACT A. Jurisdictional Statement: Respondent is, and at all times mentioned during this investigation was a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. B. Narrative Summary Of Case: Count I: Since June 30, 2013, Respondent has been ineligible to practice law due to a continuing legal education deficiency. In September, 2013, Respondent used a forged letter to induce Daniel J. Howard, D.P.M. to wire $25,000 to respondent's account at Bank of America for payment of student loans. Instead of paying off Dr. Howard's loans, respondent converted the money. Respondent failed to respond to the bar's inquiry. Count II: Shirley Rowan retained Respondent to assist her in negotiating a settlement of credit card debt. Rowan paid $11, 611 to Respondent to pay to her creditors. Respondent only paid $1,000 to one of Rowan's creditors and converted the rest of the funds. Respondent failed to respond to the Bar's inquiry. Count III: Mark and Jamie Lotz retained respondent to represent them in a bankruptcy and foreclosure matter. Respondent failed to advise the Lotzs that he voluntarily agreed to cease practicing bankruptcy law. Respondent misrepresented 2

3 to the Lotzs that he arranged a loan modification in which the Lotzs would be required to make a lump sum payment of $48,500. Respondent's misrepresentations induced the Lotzs to pay $48,000 to respondent which he converted. Respondent failed to respond to the Bar's inquiry. Count IV: Joseph J. Kutniewski retained respondent to handle a debt collection. Respondent misrepresented to Mr. Kutniewski that the debtor would accept $9,000 to settle the debt. Mr. Kutniewski told respondent he could only pay $7,000. Respondent induced Mr. Kutniewski to wire the $7,000 to respondent's bank account by misrepresenting that the debtor would accept the money as payment in full. Instead of paying the lump sum to the debtor, converted the funds. Respondent negotiated a monthly payment plan with the debtor then failed to make the payments. Respondent failed to respond to the Bar's inquiry. Count V: In April, 2010, Christopher and Hope Bell paid $1,400 to respondent to represent them in a Chapter 13 bankruptcy. Respondent obtained a plan for them which obligated them to make payments to the trustee for 60 months. Respondent failed to notify the Bells that he voluntarily ceased practicing bankruptcy law. In November 2013, respondent called the Bells and told them they could settle their bankruptcy early by paying a lump sum of $7,400. Respondent's misrepresentation induced the Bells to deposit the funds into respondent's Bank of America account. Respondent converted the funds instead of paying them to the 3

4 trustee. In March 2014, Respondent sent the Bells a check in the amount of $5,000 which was not negotiable due to insufficient lunds. Respondent failed to respond to the bar's inquiry. Count VI: In October 2012, Brad and Colleen Augsburger paid respondent $1,500 to represent them in a mortgage foreclosure and modification. Respondent failed to advise the Augsburgers of his voluntary cessation of practicing bankruptcy law. On July 8, 2013, Respondent asked the Augsburgers to wire $7,000 to his Bank of America account. Instead of paying the lender, respondent converted the funds. Respondent failed to appear at a hearing on behalf of the Augsburgers, but gave advice to Mr. Augsburger via text messages. Respondent failed to respond to the Bar's inquiry. III. RECOMMENDATIONS AS TO GUILT I recommend that Respondent be found guilty of violating the following Rules Regulating The Florida Bar: Count I: (Misconduct and minor misconduct); (Unlicensed practice of law); (a) (violate or attempt to violate the Rules of Professional Conduct); (b) (commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; 4-8.4(c) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 4-8.4(g) (fail to respond, in writing, to any official inquiry by bar counsel); (Trust 4

5 Accounts); (Trust Accounting Records and Procedures); and (Continuing legal education requirement). Count II: (Misconduct and minor misconduct); 4-1.5(Fees and Costs for Legal Services); 4-5.5(Unlicensed practice oflaw); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); (b) (commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; 4-8.4(c) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 4-8.4(g) (fail to respond, in writing, to any official inquiry by bar counsel); (Trust Accounts); (Trust Accounting Records and Procedures); and (Continuing legal education requirement). Count III: (Misconduct and minor misconduct); 4-1.5(Fees and Costs for Legal Services); 4-5.5(Unlicensed practice oflaw); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); (b) (commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; 4-8.4(c) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); (Trust Accounts); (Trust Accounting Records and Procedures); and (Continuing legal education requirement). Count IV: (Misconduct and minor misconduct); (Communication); 4-1.5(Fees and Costs for Legal Services); (Unlicensed practice oflaw); (a) (violate or attempt to violate the Rules of Professional 5

6 Conduct); (b) (commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; 4-8.4(c) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 4-8.4(g) (fail to respond, in writing, to any official inquiry by bar counsel); (Trust Accounts); (Trust Accounting Records and Procedures); and (Continuing legal education requirement). Count V: (Misconduct and minor misconduct); (Communication); (Fees and Costs for Legal Services); 4-3.4(c) (Knowingly disobey an obligation under the rules of a tribunal); (Unlicensed practice of law); (a) (violate or attempt to violate the Rules of Professional Conduct); (b) (commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; 4-8.4(c) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 4-8.4(g) (fail to respond, in writing, to any official inquiry by bar counsel); (Trust Accounts); (Trust Accounting Records and Procedures); and (Continuing legal education requirement). Count VI: (Misconduct and minor misconduct); 4-1.5(Fees and Costs for Legal Services); 4-3.4(c) (Knowingly disobey an obligation under the rules of a tribunal); 4-5.5(Unlicensed practice oflaw); 4-8.4(a) (violate or attempt to violate the Rules of Professional Conduct); (b) (commit a criminal act that reflects 6

7 adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; 4-8.4(c) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 4-8.4(g) (fail to respond, in writing, to any official inquiry by bar counsel); and (Continuing legal education requirement). IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS 1 considered the following Standards prior to recommending discipline: 4.0 VIOLATIONS OF DUTIES OWED TO CLIENTS 4.1 Failure to Preserve the Client's Property 4.11 Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury. 4.6 Lack of Candor 4.61 Disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client. 5.0 VIOLATION OF DUTIES OWED TO THE PUBLIC 5.1 Failure to Maintain Personal Integrity 5.11 Disbarment is appropriate when: b) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or f. a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice. 6.0 VIOLATIONS OF DUTIES OWED TO THE LEGAL SYSTEM 6.1 False Statements, Fraud, and Misrepresentation 6.11 Disbarment is appropriate when a lawyer improperly withholds material information, and causes serious or potentially serious injury to a party or causes a significant or potentially significant adverse effect of the legal proceeding. 7.0 VIOLATIONS OF OTHER DUTIES OWED AS A PROFESSIONAL 7.1 Disbarment is appropriate when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain 7

8 a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system. 9.0 AGGRAVATION AND MITIGATION 9.22 Factors which may be considered in aggravation: (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstructions of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (i) substantial experience in the practice oflaw; and (j) indifference to making restitution Factors which may be considered in mitigation: None V. CASE LAW I considered the following case law prior to recommending discipline: Florida Bar v. Barley, 831 So. 2d 163 (Fla. 2003), in which an attorney was disbarred for misappropriating $76,000 of client funds that were entrusted to him to be held for a specific purpose. Like Barley, respondent converted money given to him by clients for a specific purpose. VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that be disciplined by: A. Disbarment; and B. Payment of The Florida Bar's costs in these proceedings. VII. PERSONAL HISTORY, PAST DISCIPLINARY RECORD 8

9 Prior to recommending discipline pursuant to Rule 3-7.6(m)(l)(D), 1 considered the following personal history of respondent: Age: 45 Date admitted to the Bar: December 18, 1996 Prior Discipline: None. VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED I find the following costs were reasonably incurred by The Florida Bar: Administrative Costs $ 1, Court Reporter Costs $ Investigative Costs $ TOTAL $1, It is recommended that such costs be charged to respondent and that interest at the statutory rate shall accrue and be deemed delinquent 30 days after the j udgment in this case becomes final unless paid in full or otherwise deferred by the Board of Governors of The Florida Bar. JUL H D ATED this day of July, /s/ Hon. Lisa S. Porter Honorable Lisa Spader Porter Referee Deborah Hamsharie Judicial Assistant

10 Original To: Honorable John A. Tomasino, Clerk of the Supreme Court of Florida; Supreme Court Building; 500 South Duval Street, Tallahassee, Florida, Conformed Copies to: Paul Anthony Pysczynski, Respondent, 2042 Bee Ridge Rd, Sarasota, FL ; and 15 Covington Lane; #207, St. Louis, MO ; and 1358 Bonhomme Lake Drive; #B, St. Louis, MO 63132; Jodi Anderson Thompson, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580Tampa, Florida ; and Adria E. Quintela, Staff Counsel, The Florida Bar, 1300 Concord Terrace; Suite 130, Sunrise, Florida