text:
    THE FLORIDA BAR, Complainant, v. Francisco Ramon RODRIGUEZ, Respondent.
    No. SC03-909.
    Supreme Court of Florida.
    May 3, 2007.
    Rehearing Denied June 5, 2007.

      John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, James A.G. Davey, Jr. and Donald M. Spangler, Bar Counsels, The Florida Bar, Tallahassee, FL, for Complainant.
    Michael Nachwalter and Lauren C. Rav-kind of Kenny Nachwalter, P.A., Miami, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Francisco Ramon Rodriguez be found guilty of professional misconduct and that he receive a public reprimand and serve a four-year period of probation. The referee also recommends denying The Florida Bar’s request that Rodriguez be ordered to forfeit prohibited fees to the Clients’ Security Fund. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons explained herein, we disapprove the referee’s recommendation that Rodriguez receive a public reprimand and serve probation. Instead, we impose a two-year suspension. Further, we order Rodriguez to disgorge his portion of the prohibited fee to the Clients’ Security Fund, including the taxes and interest on that fee.

BACKGROUND

Rodriguez was a shareholder in the law firm of Friedman, Rodriguez, Ferraro, and St. Louis. The firm was hired to represent twenty clients who sought to sue DuPont Corporation for damages allegedly resulting from use of the DuPont product Benlate, a fungicide that was suspected of causing severe crop damage and was recalled from the market in March 1991. The partners in the firm were Paul D. Friedman, Diane D. Ferraro, Roland R. St. Louis, and Francisco R. Rodriguez. The Florida Bar brought separate disciplinary actions against the four named partners of the firm alleging that they committed misconduct by engaging in a secret “engagement agreement” with the DuPont Corporation, solely for their own financial benefit, while they were representing the clients in the Benlate cases against DuPont. Based on the partners’ separate acts of misconduct, they received different sanctions.

Ferraro received a public reprimand and made restitution of $425,000 to the clients. Fla. Bar v. Ferraro, 839 So.2d 700 (Fla.2003) (table citation). The sanction was based on the referee’s finding that Ferraro had “absolutely nothing to do with the settlement negotiations with DuPont” and did not even know about the engagement agreement until well after her former partners received the prohibited funds. Also, Ferraro agreed to testify against her former partners. Due to these facts, the referee ultimately recommended a public reprimand, after finding that a suspension or disbarment was not appropriate.

Friedman did not know about the engagement agreement until after it had been executed. Thus, he had a comparatively smaller role in the firm’s misconduct than St. Louis and Rodriguez. Also, Friedman cooperated with the Bar and he paid restitution before his disciplinary case was reviewed by this Court. However, Friedman partook in the financial benefits of the unethical engagement agreement, exposed the Benlate clients to potential harm by engaging in the conflict of interest, and acquiesced in the firm lying to the clients. He did not take any measures to inform clients or repudiate the engagement agreement. In fact, as Secretary-Treasurer of the firm, Friedman received the prohibited funds from DuPont. Therefore, Friedman’s misconduct merited a ninety-day suspension and payment of restitution in the amount of $910,000. Fla. Bar v. Friedman, 940 So.2d 428 (Fla.2006) (table citation).

St. Louis and Rodriguez were the firm’s principal actors in developing and executing the secret engagement agreement. As will be discussed herein, Rodriguez’s misconduct is less egregious than St. Louis’s misconduct. St. Louis negotiated the engagement agreement for the firm, placed his financial interests above those of his clients with regard to DuPont, and lied to Judge Wilson and the Bar regarding the secret engagement agreement. This Court disbarred St. Louis. Fla. Bar v. St. Louis, No. SC04-49, — So.2d -, 2007 WL 1285836 (Fla. May 3, 2007).

FACTS

With regard to Rodriguez, a referee made the following findings and recommendations.

The Firm, DuPont, and the Engagement Agreement. In 1996, the firm represented twenty different plaintiffs in property damages claims against DuPont arising from the use of Benlate. St. Louis, who was the lawyer who brought in the clients for the firm, had primary responsibility for communicating with the clients. Rodriguez’s primary role in the Benlate cases was to act as first chair if any of the cases went to trial and to handle significant hearings.

The firm discovered that in the case for one of its clients, Davis Tree Farm, DuPont had concealed its testing of Benlate in Costa Rica. The test plants exhibited significant damage and DuPont ordered the plants to be destroyed. The firm subsequently filed a motion to strike DuPont’s pleadings in the Davis Tree Farm case. The trial court judge orally ruled that she would enter an order striking DuPont’s pleadings and entered a judgment in favor of Davis Tree Farm.

After the judge made this oral ruling, DuPont approached the firm to try to settle the Davis Tree Farm case, as well as the other Benlate cases the firm was handling. DuPont’s attorney negotiated with Rodriguez and St. Louis. At this point, Rodriguez learned that DuPont was requesting as a condition of settlement a restriction on the firm’s right to practice. DuPont’s counsel stated that settlement of the firm’s cases would include resolving the Davis Tree Farm case before the trial judge issued her written order, as well as requiring the firm not to use the fees earned to fund future litigation against DuPont. The firm engaged in research to determine whether it was ethical for the firm to engage in such an agreement. The firm’s researcher informed Rodriguez that the law was unclear, but it appeared that DuPont’s objective could be achieved by engaging the firm after the firm finished representing the twenty Benlate clients.

DuPont eventually made offers of settlement to nineteen of the Benlate plaintiffs, but not to Davis Tree Farm. The firm was prepared to recommend that the clients accept the offers because the firm believed the offers exceeded what the clients could have reasonably expected to recover if their respective cases had gone to trial. While Rodriguez initially rejected DuPont’s request for the firm not to bring future Benlate cases against the corporation, St. Louis told DuPont that in order to have a restriction on the firm’s right to practice, DuPont would have to pay the firm. DuPont made settlement of the nineteen Benlate plaintiffs’ claims contingent on the settlement of the Davis Tree Farm case.

On August 7,1996, the trial judge’s written order striking DuPont’s pleadings arrived in the mail. Settlement negotiations continued and when DuPont’s offer reached $30,000,000, the spokeswoman for Davis Tree Farm agreed to accept the offer. Although Rodriguez believed settlement negotiations were complete, DuPont then made the settlement of the nineteen Benlate clients contingent on the firm agreeing to sign an “engagement agreement” that would preclude the firm from bringing future cases against DuPont. Again, Rodriguez declined to enter into such an agreement until the firm’s representation of the clients was complete. The firm resisted DuPont’s condition until the appointed mediator made it clear that DuPont would retract the offer unless the firm signed such an engagement agreement. The mediator, who had substantial experience in mass tort cases and had been appointed as the Special Master to handle discovery disputes in Benlate-relat-ed litigation in Dade County, advised Rodriguez that in these situations, parties would sometimes make an engagement agreement.

After much discussion about the settlement amounts that the firm was going to recommend that the clients accept from DuPont, the firm and DuPont negotiated the restrictions on the right to practice. DuPont agreed to pay the firm $6,445,000 in exchange for the firm’s agreement not to pursue future claims against DuPont and for the firm to possibly perform future work for DuPont on an hourly basis. Thus, the $59,000,000 offered to the Ben-late plaintiffs and the $6,445,000 offered to the firm through the engagement agreement constituted separate funds. Rodriguez did not participate in drafting the engagement agreement. However, he did not object to the agreement, he agreed with its terms, and he testified that he “negotiated very hard for the $6,445,000.” Further, language in the engagement agreement stated that it was contingent upon the effectiveness of the settlement agreement with the Benlate clients.

The referee found that, at this point, Rodriguez became an agent of DuPont, and his allegiance to both DuPont and his Benlate clients created a conflict of interest. Further, the referee found that the firm placed its interest above that of the Benlate clients because (1) the firm avoided the risks and expenses of protracted litigation and possible appeals; (2) the firm received fees from these cases, some of which had fatal flaws; (3) the firm received significant amounts of attorney’s fees from the settlements; (4) the firm accepted a guaranteed $6,445,000 in exchange for not pursuing future cases against DuPont; and (5) the firm could return to the “very successful full time practice” of working on an hourly basis with DuPont as an added client.

The referee found that the attorneys of the firm knew or should have known that negotiations for settlements were not concluded until the clients had accepted DuPont’s offers and, if the offers were rejected, they would have to resume negotiations. Yet, DuPont’s agreement with the firm was conditioned on the consummation of the settlement agreement between DuPont and the firm’s clients. The referee found that the statement in the engagement agreement that the firm had “completed the negotiations” indicated that the firm had a desire, if not an intent, not to have any further discussions with DuPont on behalf of its clients.

On August 8, 1996, the parties appeared before the trial judge and announced that a settlement for the Benlate clients had been reached and requested that the judge vacate and seal the order striking DuPont’s pleadings. The parties did not inform the judge about the engagement agreement. Also, because all but two of the Benlate clients had the right to accept or reject the settlement, DuPont insisted that the clients only be told the amount that they were being offered to settle their respective cases. DuPont further insisted that the clients keep the amount they received confidential. To enforce these conditions, ten percent of the settlement amounts were to be held in escrow for two years and, should any breach of confidentiality occur, approximately $6,000,000 of the clients’ settlement monies would be lost. Rodriguez never told the clients about the engagement agreement. He claimed that because DuPont had insisted on confidentiality, he believed a breach of that confidentiality would result in the clients losing ten percent of the settlement. However, because the settlement agreement between the clients and DuPont was separate from the engagement agreement between the firm and DuPont, the referee found that the confidentiality provisions of the settlement agreement were between the clients and DuPont, and did not bind the firm. Thus, disclosure of the engagement agreement to the clients would not have jeopardized the escrow funds.

The referee found that by not disclosing the agreement, Rodriguez was protecting the firm’s interest in $6,445,000, “his own interest in $1,440,000,” and DuPont’s economic interests in “not having disclosed to the world that it had done some very bad things to its clientele and got caught doing them.” Because there was ongoing Ben-late litigation occurring around the nation, the latter information potentially could have caused DuPont serious harm.

Rodriguez testified that the money he would receive from the agreements never entered his mind. However, the referee found this to be unlikely because (1) Rodriguez admitted that he found the amounts offered to the clients to be “staggering”; (2) Rodriguez testified that the Benlate clients were clients with “no hope” and would obtain no money had their cases gone to trial; and (3) Rodriguez “received in excess of $4,700,000 from the settlements.”

Aftermath of the Settlement and Engagement Agreements. After the- terms of the settlement and engagement agreements were agreed upon, St. Louis traveled around the state to meet with clients and convince them to accept DuPont’s settlement agreement. St. Louis told the clients that if they did not accept the settlement offer, the firm would no longer represent them. On August 12, 1996, the firm received $6,445,000. Thereafter, on August 16, 1996, the firm received $59,000,000 from DuPont. When one, client refused to settle, Rodriguez filed a motion to withdraw representation and a charging lien. At the hearing on this motion, Rodriguez did not tell the judge about the engagement agreement. Rather, he claimed that he wished to withdraw because the client wanted to eliminate Rodriguez’s fee. Eventually, the client accepted DuPont’s offer and Rodriguez resumed the attorney-client relationship with the client. Rodriguez did withdraw from representing Fred Haupt, another client who refused to settle. Haupt eventually settled with DuPont through his own means.

The referee found that no clients, other than Davis Tree Farm, were made aware of the engagement agreement. Thus, the clients believed that Rodriguez was representing only their interests. Further, the referee found that the firm also kept $393,933.21 of the clients’ money. The authorization to settle contained a provision by which the firm kept the interest earned on the clients’ settlement funds. The referee found that this provision was not in the best interest of the clients.

1997 Bar Investigation. In 1997, based on the complaint of one of the Benlate plaintiffs, the Bar conducted an investigation into allegations that the firm did not explain to its clients the $59,000,000 original settlement agreement, and that a possible conflict of interest had occurred between the various Benlate clients. The individual who filed the complaint, Robert L. Beasley, alleged that the firm was coercing clients into accepting DuPont’s offers, the clients were being held hostage by the firm, and the firm was keeping the interest earned from the clients’ settlement funds. Rodriguez contacted attorney Robert Batsel to represent him during this initial Bar investigation, which included a meeting with Bar representatives. Rodriguez and Batsel subsequently testified that the Bar did not ask any questions that called for them to disclose the engagement agreement to the Bar. Rodriguez and Bat-sel believed the meeting concerned whether there was an improper aggregate settlement with the Benlate clients. Eventually, this earlier disciplinary proceeding resulted in a consent judgment in 1998.

The Instant Complaint. The Bar filed the instant complaint in 2003. Before the referee in these proceedings, Batsel testified that during the 1997 meeting the Bar representatives never posed a question that required Rodriguez to disclose the engagement agreement. Batsel testified that if the Bar had asked questions regarding the engagement agreement during that 1997 investigation, Batsel would have counseled Rodriguez to disclose the agreement. The instant referee found Batsel’s testimony credible. Further, the referee found that Rodriguez and Batsel did not conspire to deceive the Bar. The referee did find, however, that Rodriguez should have disclosed the engagement agreement on his own accord during the 1997 investigation.

Findings as to Guilt. Based on these facts, the referee recommended that Rodriguez be found guilty of violating Rules Regulating the Florida Bar 4-1.4(a) (informing client of status of representation), 4-1.4(b) (duty to explain matters to client), 4-1.5(a) (prohibited fees), 4-1.7(a) (representing a client whose interests are adverse to another client), 4-1.7(b) (duty to avoid limitation on independent professional judgment), 4-1.8(a) (business transaction with or acquiring interest adverse to client), 4-1.9(a) (conflict of interest as to former clients), 4-1.16(a)(l) (declining or terminating representation), 4-5.1(c) (responsibilities of a partner for rules violations), 4-5.6(b) (restriction on lawyer’s right to practice), and 4-8.4(a) (lawyer shall not violate or attempt to violate the Rules of Professional Conduct). In making these recommendations, the referee specifically rejected the following defenses raised by Rodriguez: (1) he was only following the advice of counsel; (2) he believed he was acting in his clients’ best interests; (3) client confidentiality prevented him from disclosing the engagement agreement to the Benlate clients and the Bar; (4) the Bar is at fault in this matter; and (5) DuPont is responsible for these acts of misconduct.

Disciplinary Recommendations. In aggravation, the referee found the sole factor of multiple offenses. In mitigation, the referee found (1) Rodriguez’s lack of a disciplinary history; (2) his remorse; (3) his inexperience in handling settlements of multiple-plaintiff mass tort cases; (4) his interim rehabilitation; (5) the length of time during which Rodríguez has had to deal with various proceedings and negative publicity arising out of the DuPont settlement; (6) the emotional, financial, and physical stress Rodriguez has suffered for over eight years as a result of his misconduct; (7) the excellent results Rodriguez obtained for the Benlate clients; and (8) Rodriguez’s character and outstanding reputation in the community.

As to discipline, the referee recommended that Rodriguez (1) serve a four-year probationary period, during which he would perform 1000 hours of pro bono legal services; (2) receive a public reprimand; and (3) pay the Bar’s costs. The referee stated that the recommended discipline is a constructive sanction that will help the less fortunate in the community and- that “[suspending [Rodriguez] from the practice of law will not accomplish any worthy objective.”

Before the referee, the Bar requested that Rodriguez be ordered to forfeit $1,600,000 from his prohibited fee to the Clients’ Security Fund of The Florida Bar. The referee concluded that the Bar was seeking forfeiture of the funds more as a fine than as restitution for money taken from the Benlate clients. The referee stated that there is no authority in a Bar disciplinary proceeding to require payment that is not for restitution or payment of costs. Further, the referee found that payment of such an amount by Rodriguez would be punitive in nature.

On Review. Rodriguez petitioned this Court for review of the referee’s report, alleging that the Bar’s claims in the instant case are an impermissible collateral attack on the 1998 consent judgment entered into by Rodriguez and the Bar. The Bar filed a cross-petition, challenging the referee’s recommended discipline and the referee’s recommendation that Rodriguez not be required to forfeit money to the Clients’ Security Fund.

ANALYSIS

First, Rodriguez asserts that The Florida Bar’s claims in the instant case are barred by the doctrine of res judicata and, in turn, the referee’s findings of certain rule violations should not be approved. He bases this claim on the 1998 consent judgment that he negotiated with the Bar. Rodriguez claims that the consent judgment resolved all disciplinary matters relating to the firm’s twenty Benlate clients, and that it therefore prevents the Bar from bringing this case. Based on this premise, Rodriguez argues that the instant referee erred in denying Rodriguez’s motion for summary judgment. Further, Rodriguez notes that the grievance that generated the first disciplinary proceeding raised the issue of the firm keeping the interest on the settlement monies that were to go to the clients. Therefore, Rodriguez concludes That the Bar could have alleged a violation of rule 4-1.8(a) at that time, so the referee’s instant recommendation of a violation of the rule on that same basis is barred by res judicata.

Rodriguez’s claim that the Bar was precluded from bringing a second complaint, based on the firm’s secret engagement agreement with DuPont, is without merit. The doctrine of res judicata applies when all four of the following conditions are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) “identity of quality in persons, for or against whom claim is made.” McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323, 328 (1935); see also Palm AFC Holdings, Inc. v. Palm Beach County, 807 So.2d 703, 704 (Fla. 4th DCA 2002). Thus, the causes of action must be closely related for the doctrine of res judicata to apply. See Hay v. Salisbury, 92 Fla. 446, 109 So. 617, 621 (1926).

While both the previous and current disciplinary proceedings stem from Rodriguez’s representation of the Benlate clients in a lawsuit against DuPont, the previous case focused on how the firm dealt -with its clients and whether the firm improperly negotiated an aggregate settlement for the clients. In contrast, the current case is based on the engagement agreement that the firm arranged with DuPont. Where “the second action between the same parties is upon a different claim or demand, the judgment in the pri- or action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” Gray v. Gray, 91 Fla. 103, 107 So. 261, 262 (1926) (quoting Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1876)). Thus, the current case is not barred by res judicata as it is based on a different cause of action, i.e., Rodriguez’s relationship with DuPont. See Fla. Bar v. Gentry, 447 So.2d 1342 (Fla.1984) (holding that there was no identity of facts for res judicata to bar the proceedings where the subsequent Bar allegations were based on separate, additional, and continuing misconduct). Further, Rodriguez did not disclose or produce the secret engagement agreement in the course of the Bar’s 1997-98 investigation. As this engagement agreement never came to light and the Bar did not suspect its existence, Rodriguez cannot be rewarded in this case for previously hiding this matter from the Bar and this Court. See Fla. Bar v. Spears, 786 So.2d 516, 520 (Fla.2001) (finding that the exclusion of the present disciplinary matter from a prior judgment was solely attributable to Spears’ failure to bring the matter to the Bar’s attention).

Based on the doctrine of res judica-ta, however, we disapprove the referee’s finding that Rodriguez violated rule 4-1.8(a) when the firm retained the interest earned on the clients’ escrow funds. In its Answer Brief and Initial Brief on Cross Appeal in the instant case, the Bar admits that one of the main issues in the earlier proceedings was that Rodriguez “and his partners ... [were] keeping interest earned on the clients’ settlement proceeds.” Thus, the Bar was aware of this issue, but failed to fully pursue it in the earlier case regarding the firm’s dealings with its Benlate clients. Further, this rule violation is based on the firm’s settlement agreement with the Benlate clients, rather than its engagement agreement with DuPont. Accordingly, based on res judicata, we disapprove the referee’s finding of this rule violation.

Second, the Bar argues that the referee’s recommended disciplinary sanctions are not supported by caselaw or the standards for imposing lawyer sanctions. 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 it is the Court’s ultimate 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. (“The supreme court shall have exclusive jurisdiction to regulate ... the discipline of persons admitted [to the practice of law].”). 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). In the instant case, we agree with the Bar that the referee’s recommendations are not supported.

A two-year suspension, rather than a public reprimand, is the appropriate sanction under these circumstances. Florida Standard for Imposing Lawyer Sanctions 4.32 states that “[sjuspension is appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.” Rodriguez violated this standard and exposed the Benlate clients to potential harm. He was a knowing party to the engagement agreement, he did not disclose the conflict of interest to his clients, and his interests were clearly divided. He protected his interest in the engagement agreement by engaging in actions that were contrary to the interests of his own clients. A suspension is appropriate in conflict of interest situations which, as here, rise above mere negligence. See e.g., Fla. Bar v. Dunagan, 731 So.2d 1237 (Fla.1999) (upholding ninety-one-day suspension where, without wife’s consent, lawyer represented husband in dissolution proceeding although the lawyer had previously represented both husband and wife in a business matter).

Additionally, standard 7.2 provides for ■ suspension “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.” Fla. Stds. Imposing Law. Sanes. 7.2. Rodriguez’s conflict of interest with respect to the Ben-late clients caused the clients harm. Further, he potentially harmed the public by forming an agreement with DuPont not to pursue future lawsuits against DuPont. Also, he potentially harmed the legal system by not disclosing the engagement agreement to the Bar during the previous disciplinary proceedings.

Rodriguez’s misconduct does not rise to the same level of egregiousness as that of his former partner St. Louis. See Fla. Bar v. St. Louis, No. SC04-49, — So.2d -, 2007 WL 1285836 (Fla. May 3, 2007) (disbarring St. Louis). St. Louis engaged in additional acts of misconduct, such as drafting the engagement agreement, signing the engagement agreement on behalf of the firm, deliberately lying to a circuit court judge, making dishonest written statements to Bar representatives, and specifically refusing to advise certain clients in response to their inquiries. Nevertheless, Rodriguez still engaged in extremely serious misdeeds. He was scheduled to serve as first chair if any of the Benlate cases went to trial and he was responsible for the significant hearings. Yet to satisfy his own greed, he engaged in actions that directly conflicted with the interests of his clients. He became an agent for DuPont while still representing his Benlate clients against DuPont. In fact, due to the funds that were held in escrow to prevent any breach of confidentiality, the firm represented the Benlate plaintiffs as a fiduciary (the escrow agent) for two years after signing the engagement agreement. Thus, Rodriguez was representing adverse interests because he was on retainer to DuPont during that two-year period.

Davis Tree Farm was the only client aware of the engagement agreement. The other nineteen clients believed that Rodriguez was representing only their interests. However, Rodriguez’s interests were clearly divided. When one client refused to settle, Rodriguez filed a motion to withdraw and filed a charging lien. Rodriguez alleged that he wished to withdraw because the client wanted to eliminate Rodriguez’s fee. Rodriguez did not disclose the engagement agreement to the judge. Further, Rodriguez withdrew from representing another client who refused to settle.

When Rodriguez entered into the engagement agreement, he violated rule 4^5.6(b)(restrietion on the right to practice). The rule was adopted by this Court in 1986. See Fla. Bar re Rules Regulating Fla. Bar, 494 So.2d 977, 1069 (Fla.1986). The rule was firmly established by the time Rodriguez entered into the engagement agreement ten years later in 1996. Further, the rule is clear and unambiguous in its language:

Restrictions on right to practice A lawyer shall not participate in offering or making ...
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties.

R. Regulating Fla. Bar 4-5.6(b)(1986). Attorneys who engage in such engagement agreements receive severe sanctions, even when the misconduct is far less egregious than that in the instant case. See In re Brandt, 331 Or. 113, 10 P.3d 906 (2000) (imposing thirteen- and twelve-month suspensions on two lawyers, one with a prior disciplinary record and the other without, for entering into a side agreement -with the adversary to act as legal counsel); In re Hager, 812 A.2d 904 (D.C.2002) (suspending for one year a lawyer who, while representing fifty clients against a manufacturer, secured a side agreement with the manufacturer involving restricting his right to practice, dropping the pending case, and maintaining confidentiality). In light of the severe sanctions imposed on attorneys who have engaged in side agreements and Rodriguez’s serious misconduct, we conclude that a two-year suspension is the appropriate sanction.

In addition, we conclude that the referee’s recommendation of a four-year period of probation is inconsistent with Rule Regulating the Florida Bar 3-5.1(c). The rule permits probation for periods up to three years “or for an indefinite period determined by conditions stated in the order.” The referee’s recommendation exceeds three years and is not based on “conditions stated in the order.” Thus, the referee’s recommendation of a four-year period of probation is impermissible under the rule. Further, in light of the two-year suspension, we disapprove the referee’s recommendation of probation and the accompanying terms and conditions.

Third, the Bar asserts the referee’s recommendation that Rodriguez not be required to forfeit the funds acquired through a prohibited fee (the engagement agreement) is erroneous pursuant to rule 3-5.1(h). We agree. As we discussed in the companion case of Florida Bar v. St. Louis, No. SC04-49, — So.2d-, 2007 WL 1285836 (Fla. May 3, 2007), the proceeds from the engagement agreement are a prohibited fee that are addressed by rule 3 — 5.1(h). The rule provides, in pertinent part:

Forfeiture of Fees. An order of the Supreme Court of Florida or a report of minor misconduct adjudicating a respondent guilty of entering into, charging, or collecting a fee prohibited by the Rules Regulating The Florida Bar may order the respondent to forfeit the fee or any part thereof.... [A] fee otherwise 'prohibited by the Rules Regulating The Florida Bar may be ordered forfeited to The Florida Bar Clients’ Security Fund and disbursed in accordance with its rules and regulations.

R. Regulating Fla. Bar 3-5.1(h) (emphasis added). This Court approved rule 3 — 5.1(h) in 1990. See Fla. Bar Petition to Amend the Rules Regulating the Fla. Bar — Advertising Issues, 571 So.2d 451, 472 (Fla.1990). Thus, the clear language of the rule had been in effect for several years when Rodriguez entered into the engagement agreement in 1996.

Pursuant to rule 3-5.1(h), it is appropriate for Rodriguez to disgorge the prohibited fee to the Clients’ Security Fund. Further, permitting Rodriguez to retain his ill-gotten gains would fail to provide a deterrent and could actually encourage misconduct by greedy lawyers. See In re Hager, 812 A.2d 904 (D.C.2002); In re Hager, 878 A.2d 1246 (D.C.2005).

Based on the clear language in rule 3-5.1(h) and caselaw, we disapprove the referee’s recommendation that Rodriguez be permitted to retain the prohibited fee. Instead, we require Rodriguez to disgorge the prohibited fee into the Clients’ Security Fund. We direct that the total amount for disgorgement include the amount Rodriguez paid in taxes, as he can seek a refund of those taxes from the Internal Revenue Service. Further, we require Rodriguez to disgorge interest on the full amount of the prohibited fee. Interest shall be calculated as starting on August 12, 1996, the date the firm received the $6,445,000.

The referee stated that the amount he considered when examining the issue of disgorgement “was in excess of $1,600,000,” yet the referee also stated that Rodriguez was protecting “his own interest in $1,440,000.” Clearly, the referee did not make a finding as to a precise amount. Further, before this Court, the Bar has presented the amounts of $1,600,000 and $935,040. Thus, as this Court has not been presented with an ultimate specific amount, which includes taxes and interest, we remand this matter to the referee solely to determine the total amount for disgorgement. We direct the referee to consider Florida Bar v. St. Louis, No. SC04-49, — So.2d-, 2007 WL 1285836 (Fla. May 3, 2007), in making this determination.

CONCLUSION

Accordingly, Francisco Ramon Rodriguez is suspended from the practice of law in Florida for two years. The suspension will be effective thirty days from the filing of this opinion so that Rodriguez can close out his practice and protect the interests of existing clients. If Rodriguez 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. Rodriguez shall accept no new business from the date this opinion is filed until he is reinstated.

Further, as the referee did not find a specific amount for disgorgement that includes taxes and interest, this Court hereby remands that issue to the referee as the finder of fact to determine the total amount for disgorgement.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Francisco Ramon Rodriguez in the amount of $45,258.88, for which sum let execution issue.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . The referee did not malee a clear finding as to the specific amount that he considered for disgorgement. There are some references in the referee’s report to $1,440,000, and at other points the report states that the amount "was in excess of $1,600,000.” We remand this issue to the referee to determine the appropriate amount for disgorgement.

      . In contrast to the referee’s finding, this Court has repeatedly refused to find a mitigating factor based on a respondent’s assertion that he engaged in misconduct in order to produce benefits for his client or a third party. See Fla. Bar v. Kelner, 670 So.2d 62, 63 (Fla.1996) (explaining that although an attorney has a duty to zealously represent his clients, this duty does not require that he violate a court order and produce a mistrial); Fla. Bar v. Rendina, 583 So.2d 314, 316 (Fla.1991) (disbarring attorney for attempting to bribe an official to obtain a lesser criminal sentence for his client); Fla. Bar v. Rambo, 530 So.2d 926 (Fla.1988) (sanctioning attorney for bribing county official to receive favorable rezoning of a client's property); Fla. Bar v. Snow, 436 So.2d 48, 49 (Fla.1983) (suspending attorney who, in attempting to effect a favorable settlement in a civil case for his clients, obtained evidence by false representations); Fla. Bar v. Riccardi, 264 So.2d 5 (Fla.1972) (disbarring attorney for bribing tax agent to influence the determination of tax liability of a third party). Thus, we disapprove the referee’s finding of this factor in mitigation.

      . Rodriguez argues that the language of the 1998 consent judgment precludes the subsequent disciplinary action against him. The consent judgment states that it "concludes any Bar investigation into all of the firm’s twenty (20) Benlate clients." A plain reading of this language demonstrates that the consent judgment addressed matters regarding the firm’s dealings with its Benlate clients and the settlement for those clients. The language does not refer to the firm’s secret engagement agreement with DuPont.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Reid Alexander COCALIS, Respondent.
    No. SC05-1425.
    Supreme Court of Florida.
    May 24, 2007.
    John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Alan Anthony Pascal, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
    Kevin P. Tynan of Richardson and Tyn-an, PLC, Tamarac, FL, for Respondent.
   PER CURIAM.

We review a referee’s report recommending that attorney Reid Alexander Co-calis be diverted to the Florida Bar’s Practice and Professionalism Enhancement Program and, in particular, that Cocalis be directed to attend the Bar’s Ethics School at his expense. See R. Regulating Fla. Bar 3 — 5.3(h)(2). The Bar petitions for review of that recommendation. We have jurisdiction. See art. V, § 15, Fla. Const.; R. Regulating Fla. Bar 3-5.3(h)(4).

BACKGROUND

The Florida Bar filed a complaint against Cocalis alleging that Cocalis engaged in misconduct in handling a personal injury suit. Specifically, the Bar alleged that Cocalis’s phone call to an adverse party’s treating physician and his handling of another physician’s subpoenaed records violated Rules Regulating the Florida Bar 3-4.3 (engaging in misconduct or minor misconduct); 4 — 3.3(a)(1) (knowingly making a false statement of material fact or law to a tribunal.); 4-3.4(a) (unlawfully obstructing another party’s access to evidence); 4-8.4(a) (violating the Rules of Professional Conduct); 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (engaging in conduct prejudicial to the administration of justice).

The referee conducted a hearing in January 2006. The initial referee’s report made findings of fact and concluded that Cocalis’s conduct was unprofessional, inappropriate, and sharp practice, but that it did not violate rules 4-3.3(a)(l), 4-3.4(a), or 4-8.4(a),(c), or (d). The referee conducted a second hearing in April 2006 to determine whether Coealis’s conduct violated rule 3-4.3 and, if so, what discipline to recommend. Following that hearing, the referee filed a second report. This report adopted the findings and conclusions of the first. The referee stopped short of deciding whether Cocalis’s conduct violated the Rules Regulating the Florida Bar and instead recommended that Cocalis’s case be referred to the Bar’s practice and professionalism program and that Cocalis be ordered to take the Bar’s course on ethics and professionalism. The Bar petitioned for review. In its brief, the Bar argues that the referee erred in failing to find Cocalis guilty of unethical conduct and in failing to recommend that Cocalis be suspended.

Based on the facts found by the referee, which we approve, we cannot agree that diversion is appropriate. Because the referee stopped short of concluding whether Cocalis’s conduct violated any of the Rules Regulating the Florida Bar with which he was charged, we first address this issue, which requires us to examine Cocalis’s conduct.

Cocalis represented the defendant, Michelle Brotman, in Bradley v. Brotman, Case No. 98-020519(02), in Broward County Circuit Court. The plaintiffs, the Brad-leys, alleged that Brotman’s dog bit their two-year-old daughter and that the bite caused or aggravated permanent injuries, including alopecia areata, a skin disease resulting in hair loss on the scalp. The Bradleys were represented by Jon Krup-nick.

Before trial, Krupnick listed several doctors in his expert witness list for trial. Cocalis filed a motion to limit this list, which the trial court granted. Krupnick amended his list to include only three physicians who would testify about whether the dog bite caused the child’s alopecia. One of the plaintiffs’ experts, Dr. Bernhardt, was not listed as an expert on causation.

A few days before the trial date and after the witness lists were finalized, Krupnick sent Cocalis a letter listing thirteen reasons why the defense should settle the case. One of these reasons was that “Dr. Bernhardt, whom you have not deposed, will testify unequivocally to the extensive hair loss and the fact that it was precipitated by the dog bite.”

Shortly after receiving Krupnick’s letter, Cocalis, without notifying Krupnick or the Bradleys, called Dr. Bernhardt, identified himself as defense counsel in Bradley and as a patient of Dr. Bernhardt, and asked whether Dr. Bernhardt intended to testify about causation. The referee found that Cocalis told Dr. Bernhardt that he would not ask him about the patient’s care and treatment. However, by asking Dr. Bernhardt whether he would be testifying for the plaintiff about causation, Cocalis effectively solicited the doctor’s opinion of the patient’s medical condition.

After Krupnick learned of Cocalis’s call to Dr. Bernhardt, he filed a motion for sanctions and to strike the defense’s pleadings in Bradley, arguing that Dr. Bernhardt’s testimony had been tainted by his contact with Cocalis. Cocalis argued that there was no prejudice because Dr. Bernhardt could not testify on causation because he was not listed as a causation expert in the plaintiffs’ pretrial witness list.

The trial judge ordered the child’s guardian ad litem, Lawrence Kuvin, to investigate the phone call. The judge then held a hearing and denied Krupnick’s motion. Dr. Bernhardt did not testify at trial because his testimony would not have helped the plaintiffs, not because he became hostile to his patient after talking to Cocalis.

Another treating physician, Dr. Unis, was deposed in September 1999. His records as of that date were attached to his deposition. Because Krupnick refused to stipulate before trial to the authenticity of the records, Cocalis sent a trial subpoena to Dr. Unis’s records custodian. In response to the subpoena, Dr. Unis’s records custodian mistakenly mailed the records to Cocalis. Cocalis returned the records and explained that they were to be brought to trial. Cocalis did not inform Krupnick that the records had been erroneously sent to him. The mailed copy of the records, later admitted by stipulation, contained a new entry not contained in the copy attached to Dr. Unis’s deposition. The new entry documented a telephone conversation between Dr. Unis and Krupnick in May 2000. The note stated: “I advised him [Krupnick] that I did not think that the patient’s persistent problem with al-opecia areata at this point would be due to stress from a prior dog bite.” When Co-calis called the records custodian as a witness during trial, Krupnick stipulated to admission of the medical records without reviewing them. Cocalis did not advise either Krupnick or the court about the added notation — the admission of which as evidence was at least debatable — which the referee later characterized as “sharp practice.”

When Krupnick discovered the unfavorable notation in the stipulated records and realized that Cocalis intended to use the notation in closing arguments, he renewed his motion for sanctions and to strike the defense’s pleadings. He also moved to have the notation redacted from the records. The court denied Krupnick’s motions. According to Krupnick, the trial judge told him, “You stipulated to it, you got [sic] to live with your stipulations.” Cocalis blew up a posterboard-size version of the notation and made it the focus of his closing argument.

The jury awarded the Bradleys $8000 for past medical expenses, but no damages for future medical expenses. On appeal, the Fourth District reversed, finding the trial court had abused its discretion in admitting Dr. Unis’s medical chart with the unfavorable notation. Bradley v. Brotman, 836 So.2d 1129, 1133 (Fla. 4th DCA 2003). The Fourth District opinion also commented on Cocalis’s lack of professionalism in the underlying proceedings, stating, “[W]e condemn the actions of defense counsel as to both the contact with Dr. Bernhardt and the strategic concealment of Dr. Unis’ records.” Id. at 1136.

ANALYSIS

Rule 3-5.3 of the Rules Regulating the Florida Bar provides, under specified conditions, for diversion of disciplinary cases to practice and professionalism enhancement programs. Subdivision (b) provides that “[djisciplinary cases that otherwise would be disposed of by a finding of minor misconduct or by a finding of no probable cause with a letter of advice are eligible for diversion to practice and professionalism enhancement programs.” Recommendations of diversion can occur either before or after a formal complaint is filed. Subdivision (h) of the rule addresses diversions at the referee level, as occurred here. Rule 3 — 5.3(h)(2), titled “After Submission of Evidence,” provides:

A referee may recommend diversion of a disciplinary case to a practice and professionalism enhancement program if, after submission of evidence, but before a finding of guilt, the referee determines that, if proven, the conduct alleged to have been committed by the respondent is not more serious than minor misconduct.

Either the Bar or the respondent can appeal a referee’s recommendation of diversion, unless the parties stipulated to it. R. Regulating Fla. Bar 3-5.3(h)(4). The referee may also recommend that the attorney be required to participate in the Bar’s practice and professionalism enhancement program as part of a disciplinary sanction. Id. 3-5.3(h)(5).

Rule 3-4.3, the only remaining rule violation alleged by the Bar in the complaint and unresolved at the time of the hearing on sanctions, is titled “Misconduct and minor misconduct.” This rule provides that the “commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.” We need not address whether the referee erred in concluding that Cocalis’s conduct did not violate rules 4-3.3(a)(l), 4-3.4(a), and 4-8.4(a)(c) and (d), because we conclude that Cocalis’s conduct violated 3-4.3 and that his misconduct was more than “minor,” making true diversion inappropriate.

While Cocalis’s telephone call to Dr. Bernhardt was unprofessional and unethical, the Court is more troubled by Cocal-is’s “sharp practice” in failing to advise opposing counsel that he had inadvertently received the patient’s medical records from one of the treating physicians prior to trial, that those records contained notes of a telephone conversation between the physician and plaintiffs’ counsel that was damaging to plaintiffs’ case, and that the records he was asking the trial court to admit into evidence were not the same records as those attached to the treating physician’s deposition. Under these circumstances, Cocalis’s conduct offends our well-recognized policy that cases should be decided on the merits and not by a lawyer’s stooping to sneaky or underhanded trial tactics. See Colby Materials v. Caldwell Constr., 926 So.2d 1181, 1183 (Fla.2006) (stressing the importance of deciding cases on their merits); Bell v. State, 930 So.2d 779, 781 (Fla. 4th DCA) (holding that the state’s failure to timely advise the defendant that a witness intended to recant her earlier deposition testimony was prejudicial error requiring a new trial and that the purpose of the discovery rules is to facilitate a truthful fact-finding process), review denied, 941 So.2d 367 (Fla.2006); Tetrault v. Fairchild, 799 So.2d 226, 228 (Fla. 5th DCA 2001) (reversing a verdict in plaintiffs’ favor where the trial court allowed the plaintiffs’ medical expert to testify based on MRIs even though the plaintiff had not disclosed the topic of the testimony during discovery); id. at 229 (Harris, J., concurring and concurring specially) (stating that the “courts should not permit trial by ambush regardless of which party is riding blithely through the pass”).

In our estimation, this is not the kind of minor misconduct sufficiently addressed by diversion. On the other hand — and although it is a close call — we do not believe that the two actions at issue, which occurred about six years ago, warrant a thirty-day suspension, as the Bar urges.

In reviewing a referee’s recommended discipline of an attorney, our scope of review is broader than that afforded to the referee’s findings of fact because it is ultimately the Court’s responsibility to order the appropriate sanction. Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003); Fla. Bar v. Sayler, 721 So.2d 1152, 1155 (Fla.1998); see also art. V, 15, Fla. Const. Generally, however, we 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. Miller, 863 So.2d at 235.

Here, the referee made no recommendation of discipline. Diversion alone is not a sanction. R. Regulating Fla. Bar 3-5.3(i). Therefore, we proceed in determining the appropriate sanction without remanding this matter to the referee for further proceedings and for guidance review existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. The standards applicable to these circumstances are 5.13 and 6.13. Standard 5.13 provides that a public reprimand is appropriate “when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.” Standard 6.13 provides that a public reprimand is appropriate “when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld.”

We also find helpful the case of Florida Bar v. Sayler, 721 So.2d 1152 (Fla.1998). In Sayler, the respondent represented the claimant in a worker’s compensation case. He sent opposing counsel a letter with an article about the murder of an attorney who represented an employer and a worker’s compensation servicing agent, in violation of the rules against the commission by a lawyer of any act unlawful or contrary to honesty and justice, including rule 3-4.3. We imposed a public reprimand in combination with participation in the Bar’s practice and professionalism program, a six-month probationary period, and a psychological evaluation. While Sayler’s conduct was different in character from Cocalis’s, in terms of egregiousness it was similar.

Based upon the case law and standards, as well as the referee’s findings that Cocal-is, a Bar member since 1987, had no previous disciplinary record, cooperated with the Bar throughout the proceedings, including stipulating that he would reimburse the Bar’s costs, and recognized the impropriety of his conduct, we hold that a public reprimand by the Board of Governors of The Florida Bar and participation in the Bar’s practice and professionalism program on the terms recommended by the referee to be the appropriate discipline in this case.

CONCLUSION

Accordingly, Reid Alexander Cocalis is hereby ordered to appear before the Board of Governors of The Florida Bar to receive a public reprimand for his misconduct. He is also ordered to enroll in The Florida Bar’s Practice and Professionalism Enhancement Program and to attend the Bar’s Ethics School at his own expense.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Reid Alexander Cocalis in the amount of $1775, for which sum let execution issue.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, C.J., recused.

      . The referee determined that the interests of justice would be best served by diversion because Cocalis "appears to be an otherwise good lawyer, who has learned from his mistakes in the Bradley litigation." The referee emphasized that Cocalis, a member of the Bar since 1987, had no previous disciplinary record. The referee further noted that the Fourth District’s opinion has already served as a "very effective public reprimand."

      . Dr. Bernhardt was a prominent dermatologist in the Fort Lauderdale area and had treated Cocalis, his family, and defense counsel Rogers. Before the phone call, neither party was concerned about this relationship.

      . The Bar's complaint also alleged that Cocal-is made a misrepresentation to the trial court during the sanction hearing. During the hearing, Krupnick asked Cocalis if he had had any other contacts with his experts. Cocalis did not disclose the inadvertent receipt of Dr. Unis's records. The referee found there was no misrepresentation because Cocalis believed that issuing a trial subpoena to a disclosed witness was not an ex parte communication. The referee further found that issuing the subpoena without additional notice beyond the witness and exhibit list did not violate Florida law and that Cocalis acted ethically in issuing the subpoena.

      . The referee, in his initial report, “concluded that Attorney Cocalis did not violate most of the Rules of Professional Conduct set forth in The Florida Bar Complaint’’ and listed rules 4-3.3(a)(1), 4-3.4(a), and 4-8.4(a)(c) and (d) as the rules Cocalis did not violate.


author: PER CURIAM. BELL, J.,

text:
    William Michael KOPSHO, Appellant, v. STATE of Florida, Appellee.
    No. SC05-763.
    Supreme Court of Florida.
    May 24, 2007.

      James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

William Michael Kopsho was indicted, tried, and convicted of armed kidnapping and first-degree murder of his wife, Lynne Kopsho. Kopsho appeals his judgments of conviction of first-degree murder and armed kidnapping and his sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Based on our determination that the trial court committed reversible error in the denial of a challenge for cause of a potential juror, we reverse the convictions and vacate the sentence.

Kopsho asserts that the trial court erred in denying defense counsel’s challenge for cause against prospective juror David Mullinax. Kopsho argues that Mul-linax should have been excused for cause based on his stated views regarding a defendant’s right to remain silent. “Where an appellant claims he was wrongfully forced to exhaust his peremptory chai-lenges because the trial court erroneously denied a cause challenge, both error and prejudice must be established.” Conde v. State, 860 So.2d 930, 941 (Fla.2003). Based on the record before us, we conclude that Kopsho has satisfied both prongs of that standard.

FOR-CAUSE CHALLENGE TO POTENTIAL JUROR MULLINAX

The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. See Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). “In evaluating a juror’s qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror.” Parker v. State, 641 So.2d 369, 373 (Fla.1994). A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. See Bryant v. State, 656 So.2d 426, 428 (Fla.1995). The trial court has broad discretion in determining whether to grant a challenge for cause, and the decision will not be overturned on appeal absent manifest error. Overton v. State, 801 So.2d 877, 890 (Fla.2001).

The question before this Court is whether the trial court should have granted a cause challenge based on Mullinax’s equivocal responses when he was asked if he could be impartial if Kopsho exercised his right not to testify. As noted in Busby v. State, 894 So.2d 88, 96 (Fla.2004), the mere fact that a juror gives equivocal responses does not disqualify that juror for service. The question is whether the juror’s responses were sufficiently equivocal to generate a reasonable doubt about his fitness as a juror. Id.

During voir dire, the following exchange occurred between Mullinax and defense counsel:

MR. MILLER [defense counsel]: ....
Is there anyone on this panel who is going to have a difficult time returning a verdict in this case without hearing from my client?
JURY VOIR [D]IRE: (no response)
MR. MILLER: I mean, it’s okay if you have a problem with that. Just because the law says — I am getting back to what I talked about earlier on.
This is an extremely important point. Just because the law says that you cannot presume anything — I am not telling you whether or not you are going to hear from Mr. Kopsho.
Again these are hypothetical questions. But if you did not, the Court is going to instruct you that you can’t draw anything from that. That that is irrelevant. Should not come into your thinking.
My question is: Does anybody have a problem with that? Does anybody think that the law should be different?
MR. MULLINAX: I do. I think he should have to.
MR. MILLER: Okay.
MR. MULLINAX: I know the law is not that way, but I think so.
MR. MILLER: Now again, a more difficult, philosophical question. You know setting aside thoughts like that are tough to do. Can you do it?
MR. MULLINAX: I don’t know.
MR. MILLER: You don’t know?
MR. MULLINAX: Whether he is guilty or not, you have to stand before your maker. You are going to have to give an account for what you did here. That is what I think the law should be.
MR. MILLER: I understand that. And I respect that. You know that. I told you, and I meant it. I want to hear what you really feel deep down in here, (indicating)
But what I am asking is: Is there a possibility feeling that way, you would not be able to set that aside and that you would have trouble deliberating this case and not considering that in deliberations if Mr. Kopsho chose not to testify?
You don’t know? In other words, you are not sure?
MR. MULLINAX: I am not sure.
MR. MILLER: Okay.
MR. MULLINAX: But I would like to hear his side.
MR. MILLER: That is why I asked. No wrong answers. I respect that.
MR. HANSON [another venire person]: I agree.
MR. MULLINAX: Unless you have an eyewitness account, everything else is hearsay, according to the way I believe. It’s all hearsay, unless you have a witness that saw him do it.
The only two people who knows what happened is him and the person who died, unless he can give an account that it did not happen or a way it happened.

Neither the State nor the trial court attempted to rehabilitate Mullinax after this exchange with defense counsel.

■ The defense moved to strike Mullinax for cause because Mullinax was not certain that he could deliberate impartially in the event that Kopsho chose not to testify. The trial court denied the motion, explaining:

THE COURT: At no time did [Mulli-nax] indicate that he would be anything other than fair and impartial. Actually, he couched his comment by saying: Unless you have eye witness statements that he killed someone, I would like to hear his side of the story. Correct me if I’m wrong counsel for the prosecution, but do you not have such statements?
MR. TATTI: Yes.
THE COURT: I recognize also, counsel for the prosecution, do you intend to introduce the videotaped statement on Mr. Kopsho after his arrest?
MR. TATTI: Yes.
THE COURT: In which case, Mr. Kopsho’s version of events would also be before the. jury. But I did not find his answers to indicate he would not be impartial. Accordingly the challenge for cause is denied.

Mullinax’s equivocation regarding his ability to be impartial cannot be distinguished from the juror comments at issue in Overton v. State, 801 So.2d 877 (Fla.2001). In Overton, this Court found that the trial court erred in refusing to dismiss for cause a juror who expressed his belief that the defendant should testify. Specifically, when questioned by defense counsel, juror Russell stated:

I always think if a person’s innocent they should get up on that stand and speak for themselves. That’s the way I believe. But also, I understand what the Judge said, too. It’s like confusing to me.... But in all honesty, that’s what I really believe. I believe a person should get up there and say, I didn’t do this.

Id. at 890. Juror Russell was then further questioned by the trial court:

THE COURT: When we were out there in the open group there, you had some reservations about the Defendant’s right to remain silent.
MR. RUSSELL: Yeah.
THE COURT: What if, as part of the evidence, you were not presented with testimony from the Defendant?
MR. RUSSELL: Well, I will — I will be able to follow your instruction without—
THE COURT: meaning if I sit here and say he doesn’t, the Defendant—
MR. RUSSELL: If he doesn’t testify and you say that he doesn’t have to, then I respect that.
THE COURT: Not only doesn’t he have to, but it can’t be considered as evidence of guilt.
MR. RUSSELL: Right, I would— right.
THE COURT: It cannot be used in any adverse way against him.
MR. RUSSELL: Right.
THE COURT: It cannot come into your deliberations whatsoever.
MR. RUSSELL: Right.
THE COURT: Yesterday you had reservations about that.
MR. RUSSELL: Well, that’s — right, that’s the way I always feel about it when someone doesn’t take the stand, I figure they’ve got something to hide. That’s the way I’ve always believed.
THE COURT: Right.
MR. RUSSELL: But I can shut that out. If you tell me to shut it out, I still shut it out.

Id. at 891 (emphasis deleted). This Court held that based on the totality of the juror’s responses, the juror’s assurance that he would be able to follow the law did not relieve doubt regarding his partiality. Id. at 892.

In light of this precedent and the record on appeal, we cannot agree with the trial judge’s conclusion that “[a]t no time did [Mullinax] indicate that he would be anything other than fair and impartial.” Like juror Russell in Overton, Mullinax expressed a belief that the law should require a defendant to testify. Most importantly, when asked if he could set aside his personal beliefs while deliberating, Mulli-nax repeatedly answered that he was not sure if he could disregard a defendant’s decision not to testify. Mullinax never stated that he would be able to deliberate impartially if seated on Kopsho’s jury were Kopsho to decide not to testify. Mullinax’s consistently equivocal responses raise reasonable doubt about his fitness as a juror.

Furthermore, the trial judge’s conclusion that there was no reasonable doubt regarding Mullinax’s impartiality because the prosecution would be admitting Kop-sho’s taped statements is not a correct application of law. This Court has repeatedly held that the presumption of innocence is defeated if “a juror is taken upon a trial whose mind- is in such condition that the accused must produce evidence of his innocence to avoid a conviction.” Overton, 801 So.2d at 891 (quoting Singer v. State, 109 So.2d 7, 24 (Fla.1959) (quoting Powell v. State, 131 Fla. 254, 175 So. 213, 216 (1937))). Whether the defendant’s “version of events” will ultimately be presented to the jury is immaterial. A prospective juror who cannot presume the defendant to be innocent until proven guilty is not qualified to sit as a juror.

In summary, the record reflects that Mullinax repeatedly admitted that he was not certain whether he could deliberate in an unbiased manner in this type of case. This record can support no other conclusion than that Mullinax should have been excused from the panel for cause. The trial court erred in denying the challenge for cause.

PREJUDICE

We also agree that defense counsel properly preserved this issue for review and demonstrated prejudice pursuant to this Court’s decision in Busby v. State, 894 So.2d 88 (Fla.2004). In Busby, a majority of the Court held:

[Expenditure of a peremptory challenge to cure the trial court’s improper denial of a cause challenge constitutes reversible error if a defendant exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury. See Trotter v. State, 576 So.2d 691 (Fla.1991). As explained in Trotter, “This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.” Id. at 693. A defendant cannot demonstrate prejudice if the trial court grants the same number of additional peremptories as cause challenges that were erroneously denied. See Conde, 860 So.2d at 942.

Busby, 894 So.2d at 96-97. In the instant case, defense counsel challenged juror Mullinax for cause. The trial judge denied this challenge. Later, defense counsel used a peremptory challenge to strike Mullinax. After exhausting all remaining peremptory challenges, defense counsel requested an additional peremptory, noting that the additional peremptory would be used to strike potential juror Bellet. The trial judge denied the defense’s request for an additional peremptory. Defense counsel objected to this denial and reiterated that the additional peremptory would have been used to strike juror Bellet because of his answers about premeditation. Bellet actually served on the jury. Accordingly, Kopsho has demonstrated that he was prejudiced by the trial court’s erroneous denial of his challenge for cause against potential juror Mullinax.

CONCLUSION

For the reasons stated herein, the trial court erred in denying the defense’s challenge for cause of potential juror Mullinax. This error requires a new trial because the trial court refused to grant a requested additional peremptory challenge and an objectionable juror actually served on the jury as a result of this denial. We therefore reverse Kopsho’s conviction, vacate his sentence, and remand the case for a new trial consistent with this opinion.

It is so ordered.

LEWIS, C.J., and ANSTEAD, PARIENTE, and QUINCE, JJ., concur.

BELL, J., concurs in result only with an opinion, in which WELLS and CANTERO, JJ, concur.

BELL, J.,

concurring in result only.

I agree that the trial judge erred in denying Kopsho’s cause challenge to veni-re member Mullinax; however, Kopsho immediately corrected this error by electing to use one of his ten peremptory challenges to strike Mullinax from the panel. Consequently, the jury that rendered the verdict in this case was impartial. Given these undisputed facts, I again urge this Court to abandon the Trotter per se prejudice standard and to adopt the actual prejudice standard applied by both the federal courts and the vast majority of state courts.

In Busby v. State, 894 So.2d 88, 105-14 (Fla.2004) (Bell, J., concurring in part and dissenting in part), I explained in detail my disagreement with this Court’s continued adherence to the Trotter per se prejudice standard. Here, as in Busby, the majority applies the Trotter standard to overturn a verdict rendered by a constitutionally impartial jury. See Trotter v. State, 576 So.2d 691 (Fla.1991). I write again in this case to emphasize two points. First, I highlight how the majority’s adherence to the Trotter per se prejudice standard ignores the curative purpose of peremptory challenges, a core reason behind the statutory grant of these challenges. Second, by citing to the most recent state supreme court decision on this issue, I reiterate my argument in Busby that this Court should join the ever-growing majority of states that have abandoned or rejected a per se prejudice standard in favor of the federal rule requiring a showing of actual prejudice. Under this actual prejudice standard, no reversible error occurred in Kop-sho’s trial because, as he concedes, no juror who decided his case was legally objectionable.

I. The Trotter Deficiency

The Trotter per se prejudice standard ignores the curative purpose of peremptory challenges. These challenges give all parties, including criminal defendants, the ability to correct improperly denied cause challenges at the trial level. When parties elect to use a peremptory challenge for this purpose, they immediately cure the trial judge’s mistake, ensure that the trial is conducted before an impartial jury, and thereby alleviate the delay and expense of a retrial after appeal. In other words, peremptory challenges work in tandem with cause challenges to secure the constitutional right to trial by an impartial jury. See U.S. Const, amend. VI; art. I, §§ 16, 22, Fla. Const.; see also William T. Pizzi & Morris B. Hoffman, Jury Selection Errors On Appeal, 38 Am.Crim. L.Rev. 1391, 1406 (2001) (explaining that peremptory and cause challenges “compliment [sic] one another” in protecting the right to an impartial jury). The majority’s continued adherence to the Trotter per se prejudice rule in criminal cases vitiates the curative purpose of peremptory challenges.

The failure of the Trotter standard to account for the curative purpose of peremptory challenges is amplified by the suggestion that trial courts can avoid reversal on appeal by granting extra peremptory challenges to cover any defense cause challenges that an appellate court may later decide were improperly denied. Majority op. at 173 (citing Busby, 894 So.2d at 97 (“A defendant cannot demonstrate prejudice if the trial court grants the same number of additional perempto-ries as cause challenges that were erroneously denied.”)). This suggestion ignores two simple truths. Trial judges (1) do not knowingly err in denying cause challenges and (2) cannot divine the result of a future appellate decision on the issue. It also ignores the fact that the Trotter rule encourages counsel to “push the envelope” in voir dire by overasserting cause challenges, and when these challenges are denied, seeking extra peremptory challenges.

Lastly, my overarching concern is that the Trotter standard unnecessarily manufactures reversible error. The Trotter standard “[b]estow[s] a substantial right upon the exercise of a peremptory challenge,” and “manufactures reversible error in cases where the case has been decided by a fair and impartial jury.” Stopher v. Commonwealth, 57 S.W.3d 787, 814 (Ky.2001) (Keller, J., dissenting), quoted with approval in Morgan v. Commonwealth, 189 S.W.3d 99, 105 (Ky.2006). Stated otherwise, the Trotter standard causes Florida courts to retry cases in which a defendant has suffered no actual prejudice because his constitutional right to an impartial jury was not violated. Such unnecessary reversals are costly to the judicial system and provide a strong incentive to state legislators to cut down or eliminate peremptories. Busby, 894 So.2d at 114 (Bell, J., concurring in part and dissenting in part) (citing United States v. Annigoni, 96 F.3d 1132, 1150 (9th Cir.1996) (Kozinski, J., dissenting); State v. Hickman, 205 Ariz. 192, 68 P.3d 418, 426 (2003)).

II. The Majority Rule

To avoid the deficiencies in the Trotter per se prejudice standard, this Court should join the ever-growing majority of state courts that apply the federal actual prejudice rule and do not require reversal unless a legally objectionable juror actually served on the jury. In United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), the United States Supreme Court held that it was not reversible error when a defendant elected to cure the trial court’s erroneous denial of his cause challenge against a potential juror. Id. at 317, 120 S.Ct. 774. The Court explained that “ ‘peremptory challenges [to prospective jurors] are not of constitutional dimension,’ [Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)]; rather, they are one means to achieve the constitutionally required end of an impartial jury.” Id. at 307, 120 S.Ct. 774. “[S]uch challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension.” Id. at 311, 120 S.Ct. 774 (citing Ross, 487 U.S. at 88, 108 S.Ct. 2273). The Court reasoned that “a defendant’s exercise of peremptory challenges ... is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause.... Martinez-Salazar received precisely what federal law provided; he cannot tenably assert any violation of his Fifth Amendment right to due process.” Id. at 317, 120 S.Ct. 774.

The Kentucky Supreme Court is the most recent state supreme court to ában-don the per se prejudice standard in favor of the federal actual prejudice standard. See Morgan v. Commonwealth, 189 S.W.3d 99 (Ky.2006) (overruling Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993)). In analyzing the defendant’s claim, the Kentucky Supreme Court distinguished substantial rights from procedural rights. Id. at 105. It determined that the right to a fair and impartial jury is a substantial right because it “is essential” and “potentially affects the outcome of a lawsuit” and “is capable of legal enforcement and protection.” Id. (citing Black’s Law Dictionary 1323-24 (7th ed.1999)). Conversely, the court viewed the right to peremptory challenges as a procedural right which “helps in the protection or enforcement of a substantial right,” the right to a fair and impartial jury. Id.

I agree with the reasoning of the Kentucky Supreme Court. In the case sub judice, Kopsho received everything he was entitled to by constitution and by statute. The trial judge erred when he denied Kop-sho’s cause challenge against Mullinax, but “[sjuch mistakes are made by the best of judges in the fast-paced, contentious process of jury selection.” Busby, 894 So.2d at 105-06 (Bell, J., concurring in part and dissenting in part). Kopsho received all ten peremptory challenges that he was entitled to under the peremptory challenge statute. He used one of these peremptory challenges to strike Mullinax. See § 913.08(l)(a), Fla. Stat. (2000). The fact that Kopsho chose to use one of his ten peremptory challenges for this curative purpose, a purpose for which the statutory right is granted, cannot reasonably be deemed a denial of that statutory right. Most importantly, as Kopsho concedes, his substantive, constitutional right to an impartial jury was not violated because none of the jurors who decided his case were biased or partial. Therefore, the procedure for selecting Kopsho’s jury worked as intended. By working in tandem with challenges for cause, the statutorily granted peremptory challenges were employed to achieve the constitutional goal of obtaining an impartial jury. Given that Kopsho’s constitutional right to trial by an impartial jury was preserved as intended, I again urge this Court to adopt the actual prejudice standard applied by the vast majority of other jurisdictions and to abandon the Trotter per se prejudice standard.

WELLS and CANTERO, JJ., concur.

      . When questioned by defense counsel, juror Bellet initially answered that he would “probably go with the death penalty” so long as the State proved premeditated first-degree murder. Later Bellet added "[ujnless there were mitigating circumstances that brought this on” and explained that he would want to know all the relevant circumstances before deciding if the death penalty was warranted.

      . By "legally objectionable” I mean objectively biased or partial or otherwise removable for cause. See § 913.03, Fla. Stat. (2006).

      . Examples of cases from other states which require a showing of prejudice include: Dailey v. State, 828 So.2d 340, 343-44 (Ala.2001); Minch v. State, 934 P.2d 764, 769-70 (Alaska Ct.App.1997); State v. Hickman, 205 Ariz. 192, 68 P.3d 418, 427 (2003); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738, 744-45 (1999); People v. Yeoman, 31 Cal.4th 93, 2 Cal. Rptr.3d 186, 72 P.3d 1166, 1188 (2003); State v. Pelletier, 209 Conn. 564, 552 A.2d 805, 810 (1989); Manley v. State, 709 A.2d 643, 655-56 n. 15 (Del.1998); State v. Ramos, 119 Idaho 568, 808 P.2d 1313, 1314-15 (1991); Dye v. State, 717 N.E.2d 5, 18 n. 13 (Ind.1999); State v. Neuendorf, 509 N.W.2d 743, 746-47 (Iowa 1993); State v. Manning, 270 Kan. 674, 19 P.3d 84, 96-98 (2001); Morgan v. Commonwealth, 189 S.W.3d 99, 105-07 (Ky.2006); People v. Bell, 473 Mich. 275, 702 N.W.2d 128, 138-39 (2005); State v. Anderson, 603 N.W.2d 354, 355-56 (Minn.Ct.App.1999) (citing State v. Stufflebean, 329 N.W.2d 314, 317 (Minn.1983)); Johnson v. State, 754 So.2d 576, 577-7§ (Miss.Ct.App.2000); State v. Storey, 40. S.W.3d 898, 904-05 (Mo.2001); State v. Quintana, 261 Neb. 38, 621 N.W.2d 121, 133-34 (2001); Blake v. State, 121 Nev. 779, 121 P.3d 567, 577-78 (2005); State v. DiFrisco, 137 N.J. 434, 645 A.2d 734, 751-54 (1994); State v. Entzi, 615 N.W.2d 145, 148-50 (N.D.2000); Myers v. State, 17 P.3d 1021, 1026-28 (Okla.Crim.App.2000), overruled on other grounds by James v. State, 152 P.3d 255 (Okla.Crim.App.2007); State v. Barone, 328 Or. 68, 969 P.2d 1013, 1018-19 (1998); Green v. Maynard, 349 S.C. 535, 564 S.E.2d 83, 84-87 (2002); State v. Verhoef, 627 N.W.2d 437, 440-42 (S.D.2001); State v. Middlebrooks, 840 S.W.2d 317, 329 (Tenn.1992), superseded on other grounds by Tenn.Code Ann. § 39-13-204(i)(h), (1995); State v. Menzies, 889 P.2d 393, 397-400 (Utah 1994); State v. Fire, 145 Wash.2d 152, 34 P.3d 1218, 1221-25 (2001); State v. Lindell, 245 Wis.2d 689, 629 N.W.2d 223, 243-46 (2001); Klahn v. State, 96 P.3d 472, 480-84 (Wyo.2004).