Opinion
No. 38645.
February 18, 1970.
Talbot W. Trammell, Miami, for The Florida Bar, complainant.
Judith A. Brechner, Miami Beach, for respondent.
This cause is before us on petition of Stephen L. Ruskin to review the judgment of the Board of Governors of The Florida Bar that he be disbarred from the practice of law in Florida.
Respondent, Ruskin, is presently suspended from the practice of law by order of this Court dated January 18, 1961. Respondent subsequently petitioned for reinstatement. During the investigation of the merits of the petition for reinstatement respondent withdrew his petition for reinstatement and petitioned for leave to resign. The Board of Governors approved the resignation but added the condition "that the resignation be without leave for reinstatement." This Court considered and accepted the Board's judgment. On petition for modification and rehearing, respondent advised this Court that the condition was unacceptable to him, and the Court, with consent of the Bar, set aside the resignation and remanded for further proceedings.
State ex rel. The Florida Bar v. Ruskin, 126 So.2d 142 (Fla. 1961).
In re Ruskin, 151 So.2d 1 (Fla. 1963).
Id. at 2.
Thereafter, on or about April 16, 1965, the respondent was convicted of a felony involving the unlawful sale of securities, in the United States District Court at Miami and was placed on three years' probation. A Notice to Show Cause was served on respondent on October 5, 1965, pursuant to the Integration Rule, Article XI, Rule 11.08(4), 32 F.S.A. The proceedings on Rule to Show Cause were not prosecuted while the respondent's appeal to the Fifth Circuit Court of Appeals and his petition for certiorari to the United States Supreme Court were pending. Thereafter, further proceedings were had before the referee which culminated in the filing of his report on December 31, 1968.
The referee found the respondent guilty of the crime for which he was convicted and recommended that he be suspended for seven years from the date of his conviction in the United States District Court (April 16, 1965).
The Board of Governors recommended disbarment. Respondent petitioned to resign without leave to apply again for admission to the Bar.
The record shows that the respondent knowingly represented a corporation which made false inducements to investors concerning the economic standing of the corporation and the ability of its officers. Because of this misconduct on the part of respondent and his associates, many innocent persons lost money. This type of conduct cannot be condoned by this Court. Lawyers owe a special duty to be circumspect in their conduct when handling funds belonging to others. When any attorney is unable to withstand the temptation to misappropriate funds he should obviously not be allowed to continue in the practice of law.
The referee has recommended suspension and the Board of Governors of The Florida Bar has recommended disbarment.
The respondent has requested by telegram that he be authorized to resign from The Florida Bar "with prejudice and without leave to apply for readmission." This request was again made by his attorney at the time of oral argument before the Court.
The record indicates that respondent has been a law-abiding, civic-minded citizen for approximately nine years prior to the entry of this Order. The long passage of time between commission of the offense and the Bar proceedings also renders this case unique. The delay was occasioned by a criminal appeal. This Court has held that the purpose of disbarment is to protect the public from unethical attorneys rather than punish offending members of the Bar. Although it is not the usual policy of this Court to allow offending attorneys to resign during disciplinary proceedings, we feel that the particular circumstances of this case warrant such a result. The public interest is best served by granting respondent's request that he be allowed to resign "with prejudice and without leave to apply for readmission."
State ex rel. The Florida Bar v. Rubin, 142 So.2d 65 (Fla. 1962).
Accordingly, the petition to resign with prejudice and without leave to apply for readmission is granted forthwith and respondent is required to pay without delay the costs of these proceedings in the amount of $221.84.
It is so ordered.
CARLTON, ADKINS and BOYD, JJ., and MANN, District Court Judge, concur.
ERVIN, C.J., concurs specially with opinion.
I think it should be emphasized that Respondent has led a sober, law-abiding, exemplary life since the time of his suspension as an attorney in January, 1961. See State ex rel. The Florida Bar v. Ruskin (Fla. 1961), 126 So.2d 142.
Subsequent to suspension from practice, in April, 1965 he was convicted of certain Federal offenses committed in 1959-61, i.e., the unlawful sale of securities (an activity primarily outside his former law practice), in the United States District Court in Miami, Florida, and placed on three years' probation. The notice of The Bar to Respondent to show cause in these proceedings, mainly due to such conviction, emanated in October, 1965.
The Notice to Show Cause was issued in 1965 because Respondent's conviction in the Federal Court for the Federal offenses and all matters relating thereto occurred afterwards or were not known to The Bar at the time of the earlier suspension proceedings against him. Respondent has not engaged in the practice of law since his suspension in January, 1961, never having been reinstated to the practice of law.
It appears to me that more consideration might have been given in the instant proceedings to the good conduct record of Respondent, including the fact he successfully completed his three years' probation, since the commission of said offenses in 1959-61 and since his suspension from The Bar in 1961. His continuous good conduct record predates by several years the disbarment recommended in these proceedings. Compare, for analogous example, the views of the District Court of Appeal, Fourth District, in Englander v. Florida Real Estate Commission, 228 So.2d 415, p. 417.
Although it may have been proper for The Bar to enter an order for disbarment of Respondent because of the Federal conviction and matters related thereto to signify The Bar's opinion that these derelictions also warranted official Bar notice, condemnation and disbarment in addition to the outstanding suspension, it appears to me simultaneous consideration might appropriately have been given to Respondent's prior record of good conduct, including successful probation over the period of several years during which he has not been permitted to resume practice of law.
In this regard, it is noted the Referee recommended suspension rather than disbarment, such suspension to terminate in 1972.
Rule 11.02, Integration Rules of The Florida Bar, provides in part: "The primary purpose of discipline of attorneys is the protection of the public, the legal profession, and the administration of justice, as well as the discipline of members of the Bar." Pursuant to the reasonable intendment of this rule, it seems to me any future application of Respondent for reinstatement as a licensed attorney ought to be considered with due regard to the facts as attested by the record here reviewed: that Respondent has lived up to the ethical requirements befitting a good citizen the past nine years prior to the instant recommended disbarment. Such good conduct over this extended period of time, it seems to me, has operated to indicate sufficient rehabilitation of Respondent to attain the public interest protection required by the rule and should be deemed controlling of a timely application for Respondent's reinstatement, absent, of course, a revelation of countervailing circumstances.
While our holding allows Respondent to resign as an attorney on condition he shall be without leave to seek reinstatement, I am not sure that such condition is legally binding or that any attorney permanently disbarred or one resigning under such condition can be precluded constitutionally from seeking reinstatement. In any event, the record before us does not indicate Respondent has not rehabilitated himself or that it is unlikely that he can demonstrate he is rehabilitated if he should subsequently seek reinstatement. Compare Florida Bar v. Penny (Fla.), 164 So.2d 5.
Compare: 1. The Florida Bar v. Sherr (Fla.), 179 So.2d 337 (and particularly the special comments of Caldwell, J.).
2. The Florida Bar v. Dodd (Fla.), 195 So.2d 204.
3. The Florida Bar v. Burton (Fla.), 218 So.2d 748.
4. The Florida Bar v. Hefty, (Fla.) 220 So.2d 368.