text:
    THE FLORIDA BAR, Complainant, v. Mary Alice GWYNN, Respondent.
    No. SC08-622.
    Supreme Court of Florida.
    Feb. 16, 2012.
    Rehearing Denied July 11, 2012.

      John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Adria E. Quíntela, Chief Branch Discipline Counsel, The Florida Bar, Sunrise, FL, for Complainant.
    Mary Alice Gwynn, Delray Beach, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that respondent be found guilty of professional misconduct and suspended from the practice of law for ninety days. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons more fully explained below, we approve the referee’s findings of fact and recommendations as to guilt, but we disapprove the recommended discipline, and instead impose a ninety-one-day suspension.

FACTS

On April 1, 2008, The Florida Bar filed a four-count complaint against respondent, Mary Alice Gwynn, alleging various instances of misconduct relating to her representation of two clients in federal bankruptcy court matters. The complaint was referred for a hearing before a referee. A final hearing was held on August 9,10, and 12, 2010, and subsequently, the referee filed his Report of Referee on October 25, 2010. In his report, the referee made the following findings of fact.

First, the referee found that respondent had represented a client in the United States Bankruptcy Court for the Southern District of Florida, and that during the period of her representation, respondent failed to expedite the litigation in the best interest of the client. Instead, respondent filed numerous motions for sanctions against opposing counsel and other frivolous claims, needlessly delaying the bankruptcy proceedings. The referee found that by failing to take substantive action in the client’s case, respondent failed to competently represent her client. Based on these findings the referee recommended that respondent be found guilty of violating rules 4-1.1 (lawyer shall provide competent representation); 4-3.2 (lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); 4-8.4(a) (lawyer shall not violate or attempt to violate the Rules of Professional Conduct); and 4-8.4(d) (lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) of the Rules Regulating the Florida Bar.

Next, the referee found that because of the many frivolous motions that respondent filed in the bankruptcy case, the bankruptcy judge entered an order, on April 26, 2006, finding that respondent had acted in bad faith. In the order, the bankruptcy judge set forth specific findings regarding the numerous instances in which respondent had acted dishonestly, incompetently, and in bad faith in the pending litigation. Specifically, the bankruptcy judge found that respondent had (1)'filed frivolous claims to harass her opponent and opposing counsel; (2) failed to research and verify claims she advanced in motions she filed with the court; (3) engaged in willful abuse of the judicial system; and (4) continually made allegations, both in pleadings filed with the court and in her testimony before the court, that were simply incorrect or false. The bankruptcy judge found that respondent’s conduct was “objectively unreasonable and vexatious” and “sufficiently reckless to warrant a finding of conduct tantamount to bad faith ... for the purpose of harassing her opponent.”

The referee further found that the bankruptcy court’s April 26, 2006, order imposed a $14,000 sanction against respondent and referred the matter to The Florida Bar for ethical review. The bankruptcy court’s order was affirmed by the United States District Court, Southern District of Florida, by order dated March 14, 2007. Based on these facts, the referee recommended that respondent be found guilty of violating Rules Regulating the Florida Bar 4-3.1 (lawyer shall not bring or defend a proceeding or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous); 4-3.3(a)(l) (lawyer shall not knowingly make a false statement of material fact or law to a tribunal); 4-4.1(a) (in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person); 4-4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person); 4-8.4(a) (lawyer shall not violate or attempt to violate the Rules of Professional Conduct); 4-8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

Finally, the referee found that despite the fact that respondent no longer represented any party in the case, she continued to file pleadings and papers with the federal bankruptcy court, and that on May 15, 2006, and the court entered an “Order Directing Mary Alice Gwynn, Esquire to Stop Filing Notices of Filing.” In this order, the bankruptcy judge found that respondent had filed hundreds of pages of documents pursuant to notices of Filings or notices to the court, and directed her to stop filing such items unless specifically ordered to do so by the court or unless mandated by either the bankruptcy rules or the local rules. Subsequently, on June 7, 2006, the court entered another order finding that even after the May 15, 2006, order was entered, respondent continued to file notices of filing, in defiance of the bankruptcy court’s order. The order also found that respondent “improperly attempted to influence [the] court by filing numerous Notices of Filing containing inappropriate hearsay documents that are unrelated to any pending contested or adversary proceedings,” and in doing so, she “engaged in unprofessional conduct before [the] court.” Respondent was fined $500, and the court ordered that she be fined $250 for each future document she filed in defiance of the court order. Based on these facts, the referee recommended that respondent be found guilty of violating rules 4 — 3.4(c) (lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); 4-3.5(a) (lawyer shall not seek to influence a judge, juror, prospective juror, or other decision maker except as permitted by law or the rules of court); 4-8.4(a) (lawyer shall not violate or attempt to violate the Rules of Professional Conduct); and 4-8.4(d) (lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

As for discipline, the referee recommended that respondent be suspended for ninety days and be required to pay the Bar’s costs. Respondent now seeks review of the referee’s findings of fact and recommendation as to discipline. The Bar has filed a cross-petition for review, seeking review of the referee’s recommendation as to discipline.

ANALYSIS

I. FACTUAL FINDINGS

With regard to a referee’s findings of fact, this Court has repeatedly stated that its review is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, the Court will not reweigh the evidence and substitute its judgment for that of the referee. See Fla. Bar v. Patrick, 67 So.3d 1009, 1014 (Fla.2011); see also Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000). “To successfully challenge a referee’s factual findings, a party must show there is a lack of evidence in the record to support such findings or that the record clearly contradicts the referee’s conclusions.” Fla. Bar v. Head, 27 So.3d 1, 7 (Fla.2010).

Here, respondent first contends that the referee improperly relied on the bankruptcy court’s orders as the exclusive support for his findings of fact and thus did not make “independent” factual findings. On the issue of his reliance on the bankruptcy court orders, the referee stated in his report:

The most persuasive evidence is that advanced by the federal bankruptcy judge, who conducted evidentiary hearings and thereafter, determined that respondent had engaged in the grave, and repeated misconduct he carefully outlined in three separate orders. I have taken judicial notice of these orders, and relied upon the facts set forth in these orders, in reaching my determination in this case. I have done this after confirming that the Supreme Court of Florida has made it abundantly clear that a referee in a Florida Bar disciplinary proceeding may consider and rely upon a federal court’s order and factual findings. In The Florida Bar v. Shankman [41 So.3d 166] 2010 WL 2680248 (Fla. July 8, 2010), 85 Fla. L. Weekly S445, the respondent challenged the referee’s ruling taking judicial notice of a federal district court judge’s order and a magistrate’s report and recommendation in the respondent’s underlying civil action. Additionally, the respondent contended that the facts in those documents “tainted” the instant proceedings and compromised the referee’s independent review of the facts. In rejecting Mr. Shank-man’s claim, the Supreme Court of Florida noted that:
[t]he “ease law unequivocally supports the referee’s taking judicial notice of the federal report and recommendation and order in this bar disciplinary case.” See, e.g., Fla. Bar v. Head, 27 So.3d 1 (Fla.2010); Tobkin, 944 So.2d at 224; Fla. Bar v. Vining, 707 So.2d 670, 672 (Fla.1998); Fla. Bar v. Calvo, 630 So.2d 548, 549-50 (Fla.1993); Fla. Bar v. Rood, 620 So.2d 1252, 1255 (Fla.1993). Thus, the referee could properly consider the federal district court’s order and magistrate’s report and, although not done here, the referee cold have relied “upon them as support for the disciplinary ftndings of fact” [emphasis provided]. Head, 27 So.3d at 8.

Shankman, at 2 [170].

The Court relied on this same principle in a case decided a few days earlier: The Florida Bar v. Behm [41 So.3d 136], 2010 WL 2612335 (Fla.), 35 Fla. L. Weekly S419 (Fla. July 1, 2010). In this case involving tax issues, the Court found that the referee properly admitted a North Carolina trial court order into evidence, and considered it in making his findings in the Bar disciplinary case. As indicated in the Shankman citation, supra, the Court reached the same conclusion in The Florida Bar v. Head, 27 So.3d 1 (Fla.2010). That case is particularly relevant to the instant case because it involved a respondent representing a client in a Chapter 13 bankruptcy case. The referee in that case found that respondent guilty of many of the same rule violations of which Ms. Gwynn is guilty: conduct involving fraud, deceit or misrepresentation; knowingly making a false statement to a third person; conduct that was prejudicial to the administration of justice; and knowingly making a false statement to the tribunal. In Head, the referee recommended a 60-day suspension, but the Court rejected that finding and suspended respondent for one year. In so doing, I have noted that the Court rejected the respondent’s argument that the referee erred (in relying upon the facts established in the underlying bankruptcy proceeding). As did the referee in that proceeding, I have taken judicial notice of the bankruptcy documents offered by The Florida Bar, in reliance on section 90.206(6), Florida Statutes (2009) and The Florida Bar v. Tobkin, 944 So.2d 219 (Fla.2006).

Accordingly, standing alone, the three sanctioning orders entered by the federal bankruptcy judge on April 26th, May 15th, and June 7th, 2006 are sufficient to meet The Florida Bar’s burden of proof as to all charges related to the Walker bankruptcy.

The referee is correct in his assessment of the Court’s case law. The Court has clearly held that a referee in a bar disciplinary proceeding can properly rely upon facts established in orders and decisions of other tribunals to support his or her findings of fact. In Florida Bar v. Tobkin, 944 So.2d 219, 223 (Fla.2006), the respondent challenged the referee’s finding of fact as to several counts on the basis that the findings were based on the “hearsay language included in the ‘unauthenticated’ opinion of the Fourth District in Rose v. Fiedler, 855 So.2d 122 (Fla. 4th DCA 2003) [iquashed sub nom. Hussamy v. Rose, 916 So.2d 785 (Fla.2005) ].” The Court rejected this challenge, explaining that because bar disciplinary proceedings are “quasi-judicial rather than civil or criminal, the referee is not bound by the technical rules of evidence. Consequently, a referee has wide latitude to admit or exclude evidence and may consider any relevant evidence, including hearsay and the trial transcript or judgment in a civil proceeding.” Tobkin, 944 So.2d at 224 (citations omitted). The Court further explained that even if the rules of evidence did apply strictly in bar proceedings, the referee’s consideration of the opinion would have been proper as a matter — decisional law — which, under section 90.201, Florida Statutes (2005), must be judicially noticed. Id. at 224.

Similarly, in Florida Bar v. Head, 27 So.3d 1 (Fla.2010), the Court rejected the respondent’s contention that the referee should not have relied on facts established in documents and decisions from a bankruptcy proceeding of which the referee had taken judicial notice. The Court stated that “it is well established that in bar disciplinary proceedings, the referee is permitted to consider all relevant information pertaining to the alleged misconduct,” and thus, “the referee was permitted to consider the bankruptcy court documents and rely on them as support for the disciplinary findings of fact.” Id. at 7-8 (emphasis added); see also Fla. Bar v. Shankman, 41 So.3d 166, 170 (Fla.2010) (rejecting respondent’s contention that referee misapplied judicial notice provision of section 90.202(2), Florida Statutes (2009), and concluding that referee properly considered federal district court sanction order and underlying magistrate’s report and recommendation). Accordingly, we reject respondent’s arguments that the referee improperly relied upon the bankruptcy court orders in support of his findings of fact.

Moreover, as the Bar points out, the referee also heard the testimony of the Bar’s bankruptcy expert, Patrick Scott, which clearly supported the referee’s findings of fact. Mr. Scott testified that the kind of bankruptcy proceeding respondent was involved in is typically a very simple proceeding and that instead of properly expediting matters, she presented “a great many obstacles to the court reaching the issues” that were the subject of the request for relief. He further stated that he had “never seen a situation that approaches this one for over-litigiousness” and “bringing information to the attention of the court that was not relevant, not material or not necessary to the court’s determination.” He stated that respondent “in many instances filed papers with the court that were meant as ad hominem attacks upon parties and not upon the issues” and made representations to the court for which she had no support. Scott also continued to testify at length about respondent’s conduct in overlitigating the case and the filings and pleadings that led to her being sanctioned by the bankruptcy judge. Accordingly, we conclude that the referee’s factual findings are supported by competent substantial evidence in the record.

Next, respondent contends that the referee’s factual findings cannot be upheld because she was unable to confront her “accuser.” She states that the Bar refused to make Judge Hyman, the federal bankruptcy court judge, available for deposition or appear as a witness at trial. She further states that she was repeatedly “blocked” from taking the judge’s deposition and that she was “precluded” from conducting any discovery related to the “complaining witness-judge.” Respondent does not specifically explain in her briefs how she was blocked or precluded from deposing or calling Judge Hyman as a witness at trial. However, the record shows that she sought to have the referee issue a subpoena for deposition to Judge Hyman, that the Bar objected, and that the referee, treating the Bar’s objection as a motion to quash, refused to issue the subpoena.

The Court reviews a referee’s rulings on discovery matters using an abuse of discretion standard. See Fla. Bar v. Berthiaume, 78 So.3d 503 (Fla.2011). Respondent argues that there were several areas of inquiry she wanted to depose Judge Hyman on, including his potential bias against her and in favor of opposing counsel in the bankruptcy proceeding, the internal inconsistency of his orders, and his unequal and disparate treatment of respondent, as compared to the other attorneys involved in the bankruptcy proceeding. The transcript of the hearing before the referee regarding the issuance of the subpoena shows that respondent made similar arguments before the referee. However, the referee ultimately concluded that Judge Hyman was not a necessary factual witness in this matter, considering that respondent had requested and the referee had issued subpoenas for several other witnesses who were attorneys involved in the bankruptcy case. The referee stated, “At this point, I don’t see anything that cannot be proven through those attorneys, and not only proven as far as the Florida Bar goes with the Florida Bar trying to prove their case, but also with you, Ms. Gwynn, and Mr. Thompson, use those witnesses to your benefit with regard to whether or not the Bar can prove their case.” We conclude that respondent has not shown that the referee abused his discretion in refusing to issue a subpoena to the federal bankruptcy judge.

II. DISCIPLINE

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Ratiner, 46 So.3d 35, 39 (Fla.2010); see also art. V, 15, Fla. Const. However, generally speaking this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Ratiner, 46 So.3d at 39; see also Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Here, the referee recommended that respondent be suspended for ninety days and be required to pay the Bar’s costs. In recommending a suspension of ninety days, the referee cited the following cases: Florida Bar v. Committe, 916 So.2d 741 (Fla.2005) (imposing a public reprimand where the lawyer knowingly failed to obey the rules of the tribunal, filed two frivolous federal lawsuits, and abused the legal process); Florida Bar v. Bloom, 632 So.2d 1016 (Fla.1994) (imposing a ninety-one-day suspension against a lawyer who failed to comply with the rules of the tribunal and engaged in conduct prejudicial to the administration of justice); Fla. Bar v. Broida, 574 So.2d 83 (Fla.1991) (imposing one-year suspension where an attorney was found to have raised and filed frivolous claims, filed notices of taking depositions without following appropriate procedures, filed rambling filings, continuously misrepresented facts to the court, personally attacked the integrity of multiple lawyers and judges, and unnecessarily delayed court actions by filing frivolous pleadings); Fla. Bar v. Germain, 957 So.2d 613 (Fla.2007) (imposing one-year suspension where respondent made false allegations and accusations in a frivolous petition for injunction for protection against repeat violence and engaged in other misconduct, including knowingly disobeying an obligation under the rules of a tribunal, conduct intended to disrupt a tribunal, and conduct prejudicial to the administration of justice); Florida Bar v. Hagendorf, 921 So.2d 611 (Fla.2006) (imposing two-year suspension where the lawyer was found guilty of filing a frivolous quiet title action and a number of lawsuits against the state bar in another jurisdiction); and Florida Bar v. Klein, 774 So.2d 685 (Fla.2000) (disbarring attorney for forum-shopping, incompetence, knowingly disobeying the rules of the tribunal, filing frivolous pleadings, and engaging in conduct that was dishonest and prejudicial to the administration of justice).

This case law and the Standards for Imposing Lawyer Sanctions clearly support a suspension in this case. However, the Bar argues that a ninety-one-day rehabilitative suspension, rather than the referee’s recommended ninety-day suspension, is required. We agree. Only one of the cases specifically cited by the referee involved a suspension of less than ninety-one days, and although the referee found several mitigating circumstances — (1) absence of prior disciplinary record, (2) personal or emotional problems, and (3) imposition of other sanctions — it is unclear what weight the referee gave to them. The referee found respondent’s misconduct in the bankruptcy case to be “intentional, serious and repeated, despite and in defiance of warnings issued to her, and sanctions imposed against her, by a sitting federal judge.” Further, he recommended that she be found guilty of fifteen separate rule violations, including making false statements, conduct involving dishonesty, deceit, and misrepresentation, making frivolous claims, using means with no other purpose but to delay or harass, failing to provide competent representation, failing to reasonably expedite litigation, and conduct prejudicial to the administration of justice.

Additionally, as discussed in detail in his orders, the bankruptcy judge found that respondent made numerous allegations of wrongdoing and dishonesty against opposing counsel in the bankruptcy case with no basis in fact for doing so. The bankruptcy judge concluded that her conduct in making these baseless allegations was “objectively unreasonable and vexatious” and “sufficiently reckless to warrant a finding of conduct tantamount to bad faith.” Further, as evidenced by Judge Hyman’s May 15, 2006, and June 7, 2006, orders, respondent intentionally violated the court order directing her to stop filing “notices of filing” in the bankruptcy proceeding and was again sanctioned by the bankruptcy court for doing so.

Given the obvious seriousness of respondent’s misconduct in this case, we conclude that a ninety-one-day suspension is warranted. In Florida Bar v. Head, 27 So.3d 1 (Fla.2010), we imposed a one-year suspension where the respondent, as counsel for debtors in a bankruptcy case, was found to have been dishonest with the bankruptcy court regarding his receipt of money from the debtors’ refinancing of a loan, to have filed a suggestion of bankruptcy when he knew no petition for bankruptcy had been filed, and to have represented the debtors when he had a conflict of interest. The bankruptcy court also sanctioned the respondent, prohibiting him from practicing before the bankruptcy court for ninety days. Id. at 5. Respondent was found guilty of violating many of the same rules as in the instant matter, including Rules Regulating the Florida Bar 4 — 1.7(b), 4-3.1, 4-3.3(a)(l), 4-4.1(a), 4-8.4(c), and 4-8.4(d). Id. at 5-6; see also Fla. Bar v. Nunes, 734 So.2d 393 (Fla.1999) (imposing a three-year suspension for filing a frivolous lawsuit, continuing to represent clients after being discharged, making disparaging remarks about judges and opposing counsel, and making false representations to a tribunal in violation of rule 4-8.4(d), among others).

CONCLUSION

Accordingly, Mary Alice Gwynn is hereby suspended from the practice of law for ninety-one days. The suspension will be effective thirty days from the filing of this opinion so that Gwynn can close out her practice and protect the interests of existing clients. If Gwynn notifies this Court in writing that she 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. Mary Alice Gwynn shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Gwynn shall accept no new business from the date this opinion is filed until she is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Mary Alice Gwynn in the amount of $21,060.27, for which sum let execution issue.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . The referee found that count I of the complaint had not been proven. The Bar does not seek review of that finding. It is therefore approved without further discussion.

      . Respondent raises the following issues in addition to those discussed below: (1) whether the referee improperly considered her conduct during the disciplinary proceedings as a new count or new rule violation against her; (2) whether the referee erred in failing to conduct a bifurcated hearing with a separate evidentiary phase and a penalty phase; (3) whether the referee improperly "punished” her for maintaining her innocence; and (4) whether the referee erred in awarding costs to the Bar because she had no opportunity to challenge the costs. We find these issues to be without merit and do not address them further in this opinion.

      . In Florida Bar v. Calvo, 630 So.2d 548 (Fla. 1993), the Court rejected the respondent’s contention that the referee improperly took judicial notice of SEC cases and federal cases that arose out of the conduct that was the subject of the bar disciplinary proceeding against him because the applicable standards of review were different. The Court stated that the difference "goes only to the weight to be accorded to the information in the Florida disciplinary proceeding, not to its admissibility.” Id. at 550; see also Fla. Bar v. Vining, 707 So.2d 670, 673 (Fla.1998).

      . In that opinion, the district court reversed a directed verdict granted in favor of the defendant as a sanction for trial counsel’s (respondent Tobkin’s) misbehavior during the course of the litigation and at trial. The court determined that such a sanction was inappropriate where the record did not support a finding that the client herself was personally involved in the attorney’s misconduct. However, the opinion detailed various instances of misconduct and improper behavior on respondent’s part and found his actions before the trial court "willful, deliberate, and contumacious.” Rose, 855 So.2d at 127.

      . Respondent also takes issue with two specific statements in the referee's report, not included in the referee’s "factual findings” per se: (1) that "on or about February 18, 2009, respondent withdrew her guilty plea” in the disciplinary proceeding; and (2) that respondent “sat before [the referee] and testified that she did this because she believes the judge was part of an 'old boys club.' ” Respondent contends that she never entered a guilty plea in these proceedings. However, while this may be technically correct, on January 20, 2009, her counsel and bar counsel submitted to the referee a "Joint Stipulation of Settlement,” stating, "Respondent agrees to enter a guilty plea, and sign a Guilty Plea and Consent Judgment in which she formally pleads guilty to violation of the following Rules Regulating the Florida Bar: 4-3.1, 4-3.4(c), 4-8.4(a), and 4-8.4(d)." Based upon this, the referee entered an order cancelling the scheduled final hearing in the case. However, on February 18, 2009, Respondent’s counsel filed a “Motion for Extension of Time To File Report of Referee,” stating that the "language of the guilty plea could not be agreed upon by the parties, however, and the negotiation broke down to the point that Respondent has stated her intention and desire to withdraw her stipulation regarding entering a guilty plea.” Clearly, this is what the referee was referring to in his statement. Further, the statement is irrelevant to any of the material issues in this case. Accordingly, we reject respondent’s argument in this regard.
      Respondent also contends that she never testified that she believed the judge was part of an "old boys’ club.” While a review of respondent’s testimony during the final hearing confirms that respondent did not use the words "old boys' club,” she did testify that she believed the bankruptcy judge was biased against her because she was not a bankruptcy lawyer. Thus, although not in so many words, the import of respondent’s testimony was the same. Accordingly, we reject respondent’s argument on this issue.

      . See Fla. Stds. Imposing Law. Sanes. 4.52 ("Suspension is appropriate when a lawyer engages in an area of practice in which the lawyer knowingly lacks competence, and causes injury or potential injury to a client.”); 6.12 (“Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action.”); 6.22 ("Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.”); and 7.2 ("Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.”).


source: Caselaw Access Project

author: PARIENTE, J. QUINCE, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Robert N. STURDIVANT, Respondent.
    No. SC10-1791.
    Supreme Court of Florida.
    Feb. 23, 2012.

      Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.
   PARIENTE, J.

The issue in this case is whether the merger doctrine precludes a first-degree felony-murder conviction predicated on a single act of aggravated child abuse that caused the child’s death. In Sturdivant v. State, 84 So.3d 1044 (Fla. 1st DCA 2010), the First District Court of Appeal certified to this Court a question as one of great public importance, asking whether this Court’s decision in Brooks v. State, 918 So.2d 181 (Fla.2005), precludes a felony-murder conviction in such a situation, notwithstanding the language of the felony-murder statute.

We rephrase the certified question as follows: Based upon legislative intent as evidenced by the plain language of the felony-murder statute, we hold that the merger doctrine does not preclude a felony-murder conviction predicated upon a single act of aggravated child abuse that caused the child’s death. Accordingly, we answer the rephrased certified question in the negative, recede from Brooks to the extent that it holds to the contrary, and quash the First District’s decision below.

DOES THE MERGER DOCTRINE PRECLUDE A FELONY-MURDER CONVICTION UNDER SECTION 782.04(l)(a)2., FLORIDA STATUTES (2007), THAT IS PREDICATED UPON A SINGLE ACT OF AGGRAVATED CHILD ABUSE THAT CAUSED THE CHILD’S DEATH?

FACTS AND BACKGROUND

The felony-murder statute in Florida provides that first-degree murder includes: “The unlawful killing of a human being ... [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... [a]ggravated child abuse....” § 782.04(l)(a)2.h., Fla. Stat. (2007). In this case, Sturdivant “was indicted by a grand jury for first-degree felony murder and aggravated child abuse. As to the felony-murder charge, the indictment alleged that [Sturdivant] killed the victim while committing aggravated child abuse by slapping the [two-year-old] victim into a wall. The allegation was the same for the aggravated child abuse charge.” Sturdivant, 84 So.3d at 1044. In light of the Brooks decision, the State out of an abundance of caution also filed an information charging second-degree murder on the same allegation as had been made in the indictment. The first-degree and second-degree murder cases were consolidated. Id.

At trial, the State “played for the jury a portion of a statement made by [Sturdi-vant] in which [he] said that he had slapped the two-year-old victim, who was standing on a coffee table, on the back of the head with such force that the victim fell, hitting his head on the concrete wall.” Id. The medical examiner testified that Sturdivant’s “version of what had happened was consistent with the findings on autopsy, and that the force of the slap to the back of the victim’s head would have been sufficient to cause death.” Id.

Following the trial, the jury returned verdicts finding Sturdivant guilty of first-degree felony murder, second-degree murder, and aggravated child abuse. At sentencing, Sturdivant was adjudicated guilty of first-degree murder and aggravated child abuse. Id. at 1045. The trial court sentenced him to life imprisonment without the possibility of parole for the first-degree murder conviction and to thirty years’ imprisonment for the aggravated child abuse conviction. Because of double jeopardy concerns, Sturdivant was not adjudicated guilty of, or sentenced for, second-degree murder. Id.

On appeal, Sturdivant argued that he could not be convicted of both the first-degree felony murder and the underlying felony of aggravated child abuse because of the merger doctrine. After examining this Court’s decision in Brooks, in which a majority of the Court held that it was error to convict Brooks of felony murder based on the predicate felony of a single act of aggravated child abuse, the First District held that in this case, “[bjecause it is clear that the child victim died as the result of a single blow from [Sturdivant], we are constrained to reverse [Sturdi-vant’s] convictions.” Id. at 1048. The First District then certified to this Court the question of whether Brooks precludes a conviction for felony murder based on the predicate offense of aggravated child abuse when the abuse consists of a single act, despite the language of section 782.04(l)(a)2., the felony-murder statute. Id.

ANALYSIS

In Brooks v. State, 918 So.2d 181, 198 (Fla.2005), a majority of this Court concluded that when a felony-murder conviction is predicated upon a single act of aggravated child abuse that causes the child’s death, the underlying felony of aggravated child abuse based on that single act merges with the homicide. We begin our analysis by examining the merger doctrine, which is a doctrine of statutory construction designed to effectuate legislative intent. Then, we examine the relevant portions of the felony-murder statute to discern the legislative intent. We conclude that where the underlying felony has been explicitly enumerated by the Legislature as one upon which a felony-murder conviction can be based, the underlying felony and the homicide do not merge. To hold otherwise would do violence to legislative intent as evidenced by the plain language of the felony-murder statute. Accordingly, we recede from Brooks to the extent that it holds to the contrary.

The Merger Doctrine

The merger doctrine is a principle of statutory construction rather than a principle of constitutional law. The origins of the merger doctrine have been explained as follows:

Conceived in the nineteenth century, the merger doctrine was developed ... as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or “predicate”) felony committed by the defendant was assault. The name of the doctrine derived from the characterization of the assault as an offense that “merged” with the resulting homicide.

State v. Godsey, 60 S.W.Sd 759, 774 (Tenn.2001) (quoting People v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022, 1028 (1994), overruled on other grounds by People v. Sarun Chun, 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425 (2009)). With respect to the merger doctrine being one of preserving legislative intent, the Tennessee Supreme Court has explained:

Courts have generally declined to hold that the merger doctrine implicates any principles of constitutional law. Instead, courts have viewed the merger doctrine as a principle for preserving legislative intent and, more specifically, as a principle that preserves “some meaningful domain in which the Legislature’s careful graduation of homicide offenses can be implemented.”

Id. (citations omitted) (quoting Hansen, 36 Cal.Rptr.2d 609, 885 P.2d at 1028). The court observed that “[t]he doctrine has been applied largely in those states where the felony murder statute fails to specifically list the felonies capable of supporting a felony murder conviction.” Id. at 774-75.

In a prior decision, this Court also recognized this distinction. In Robles v. State, 188 So.2d 789, 792 (Fla.1966), this Court distinguished between a felony-murder statute that provided that “any” felony could serve as a basis for felony murder and an enumerated felony-murder statute, such as Florida’s. In that case, the defendant asserted that the facts of the case— where the victim was killed during the course of a burglary — were not appropriate for the application of the felony-murder rule. Id. at 791. The defendant directed the Court’s attention to a line of New York cases holding that the felony-murder rule does not apply unless the felony is separate and independent from the homicide and where the underlying felony is not separate and independent, the underlying felony and the homicide merge. Id. at 792. This Court disagreed, noting the difference between the general catchall felony-murder statute in New York and the enumerated felony-murder statute in Florida, which listed burglary as an offense on which felony-murder can be predicated:

As appellant acknowledges, the concern of the New York court, which was to preserve the integrity of the statutory degrees of homicide, resulted from the fact that the statute of that state makes a homicide committed in the perpetration of any felony first degree murder. Since the phrase “any felony” is broad enough to include even the aggravated assault that is usually involved in any homicide, the result would be that substantially every homicide would constitute first degree murder.
It was to avoid this result that the New York court adopted the doctrine that the supporting felony had to be independent of the homicide....
It is obvious that the problem that motivated the New York court to adopt the above rule cannot exist under a statute like Florida’s, which limits the felony-murder rule to homicides committed in the perpetration of specified felonies, not including assault in any of its forms.

Id. (second emphasis added) (citation omitted). Accordingly, this Court concluded that the concern motivating the New York courts — preserving the integrity of statutory degrees of homicide — did not compel the same result in Florida.

Florida’s Felony-Murder Statute

Because the merger doctrine is a principle of statutory construction, our analysis focuses on legislative intent. This is because “[a] court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008). “As with any case of statutory construction, [the Court must] begin with the ‘actual language used in the statute.’ ” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007) (quoting Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006)). “This is because legislative intent is determined primarily from the statute’s text.” Id. Accordingly, we begin our discussion of the felony-murder statute with an examination of the statute’s language. Because the question before this Court is a purely legal one that includes issues of statutory interpretation, this Court’s review is de novo. See Sanders v. State, 35 So.3d 864, 868 (Fla.2010) (“Pure questions of law are subject to de novo review.”); State v. Burris, 875 So.2d 408, 410 (Fla.2004) (stating that a “question of statutory interpretation is subject to de novo review”).

Florida’s felony-murder statute specifically lists the underlying offenses that can justify a conviction for first-degree felony murder. See § 782.04(l)(a)2., Fla. Stat. Aggravated child abuse is one of the enumerated felonies in the statute. The felony-murder statute provides that first-degree murder includes: “The unlawful killing of a human being ... [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... Aggravated child abuse....” § 782.04(l)(a)2.h., Fla. Stat. Aggravated child abuse is defined as follows:

“Aggravated child abuse” occurs when a person:
(a) Commits aggravated battery on a child;
(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or
(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

§ 827.03(2), Fla. Stat. (2007). The statute defines “maliciously” as follows:

For purposes of this section, “maliciously” means wrongfully, intentionally, and ■without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

§ 827.03(4), Fla. Stat.

Sturdivant argues that the merger doctrine should apply in his ease, which would preclude his felony-murder conviction being based on aggravated child abuse consisting of a single violent act. However, we note that the merger doctrine “has been applied largely in those states where the felony murder statute fails to specifically list the felonies capable of supporting a felony murder conviction. Where a ‘legislature explicitly states that a particular felony is a predicate felony for felony-murder, no “merger” occurs.’ ” Godsey, 60 S.W.3d at 774-75 (footnote omitted) (quoting State v. Lopez, 174 Ariz. 131, 847 P.2d 1078, 1089 (1992)); see also Lopez, 847 P.2d at 1089 (“Even those states that follow the merger doctrine recognize that, if the legislature explicitly states that a particular felony is a predicate felony for felony-murder, no ‘merger’ occurs.”). Here, the Florida Legislature has specifically listed aggravated child abuse as a predicate offense that will support a conviction for first-degree felony murder. Accordingly, we conclude that the merger doctrine does not apply where the underlying felony is the enumerated felony of aggravated child abuse.

Further, the plain language of the felony-murder statute makes no distinction between cases involving single or multiple acts of aggravated child abuse. Rather, the statute clearly encompasses those situations involving a single act of aggravated child abuse by providing that a felony-murder conviction may be predicated upon “any ... Aggravated child abuse.” § 782.04(l)(a)2.h., Fla. Stat. (emphasis added). After examining the language of the statute, we conclude that the Florida Legislature has unambiguously indicated its intent to elevate the punishment to that of first-degree murder in situations wherein the death of a child is caused by even a single act of aggravated child abuse.

Receding from Brooks

Having examined the merger doctrine and discerned the legislative intent from the plain language of the statute, we now turn to our consideration of the Brooks decision and whether to recede from it. When considering whether to recede from precedent, this Court has explained: “The doctrine of stare decisis counsels us to follow our precedents unless there has been ‘a significant change in circumstances after the adoption of the legal rule, or ... an error in legal analysis.’ ” Rotemi Realty, Inc. v. Act Realty Co., 911 So.2d 1181, 1188 (Fla.2005) (quoting Dorsey v. State, 868 So.2d 1192, 1199 (Fla.2003)). “Fidelity to precedent provides stability to the law and to the society governed by that law. However, the doctrine does not command blind allegiance to precedent. Stare decisis yields when an established rule of law has proven unacceptable or unworkable in practice.” State v. Green, 944 So.2d 208, 217 (Fla.2006) (citations and internal quotation marks omitted).

In Brooks, the defendant was convicted of two counts of first-degree murder for the murder of Rachel Carlson and her three-month-old daughter; he was sentenced to death for both murders. 918 So.2d at 186. Brooks was not charged with aggravated child abuse; however, the trial court found as an aggravating circumstance that “the murder occurred during the commission of the felony of aggravated child abuse.” Id. at 187. Brooks argued on appeal that the trial court erred by finding that he committed the murders during the course of a felony (aggravated child abuse) and then by applying the aggravating circumstance based on the aggravated child abuse. Id. at 197. He contended that “because the single act of stabbing [the child] formed the basis of both the aggravated child abuse aggravating factor under section 921.141(5)(d) of the Florida Statutes and the first-degree felony murder charge, the court should have found that the aggravated child abuse allegation ‘merged’ with the more serious homicide charge.” Id. A majority of the Court concluded that the aggravated child abuse based on a single stab wound would merge with the homicide. Id. at 198-99; id. at 217 (Pariente, J., concurring in part and dissenting in part). In so holding, the per curiam opinion, in which two Justices concurred, relied upon this Court’s prior decision in Mills v. State, 476 So.2d 172, 177 (Fla.1985), wherein the Court held that an aggravated battery conviction (which is not an enumerated felony in the felony-murder statute) and a homicide conviction, both based on a single gun blast, merged into one criminal act. Brooks, 918 So.2d at 198 (per curiam op.).

Justice Lewis concurred in part and dissented in part, writing separately to express his disagreement with “the majority’s determination that aggravated child abuse was not available for consideration in the instant matter because Brooks inflicted only one lethal stabbing blow on the infant’s body.” Id. at 217 (Lewis, J., concurring in part and dissenting in part). Justice Lewis stated that the result “contravenes the plain language of the felony murder statute and is directly contrary to the Legislature’s intent in amending that statute to include the felony of aggravated child abuse as a basis for application of the doctrine of felony murder and as a factor to be weighed in aggravation in the sentencing determination.” Id. Justice Lewis also discussed why reliance on Mills was misplaced. See id. at 218-20. With respect to the underlying felony in Mills, he explained in relevant part:

At the time of our decision in Mills, as well as currently, aggravated battery of an adult cannot serve as the basis for a felony murder conviction or be applied as an aggravating factor during the course of a sentencing determination. ... By law, however, aggravated battery of a child can serve as the basis for a felony murder conviction ..., regardless of whether a single act of violence constituted both the abuse and resulted in the death of the child.

Id. at 220.

In light of the nature of the merger doctrine and the plain language of the Florida felony-murder statute, we agree with Justice Lewis’s dissent in Brooks that the holding was contrary to the plain language of the statute and legislative intent. Thus, we recede from Brooks to the extent it holds that felony murder cannot be predicated upon a single act of aggravated child abuse. See Dorsey, 868 So.2d at 1199 (stating that stare decisis will yield “when there has been an error in legal analysis”). The Brooks decision created a distinction not contemplated by the Legislature— whether the underlying felony of aggravated child abuse consists of a single act or multiple acts.

Further, we recognize that Brooks improperly extended and relied upon Mills. The Court in Mills concluded that it did not “believe that the legislature intended dual convictions for both homicide and the lethal act that caused the homicide [aggravated battery] without causing additional injury to another person or property.” Mills, 476 So.2d at 177. Accordingly, based on legislative intent, the Mills Court concluded that “[i]n this limited context” the aggravated battery and the homicide “merged into one criminal act” and therefore vacated the sentence and conviction for aggravated battery. Id. However, the underlying felony in Mills was aggravated battery, a felony not enumerated in the felony-murder statute. The Brooks Court reasoned that “aggravated child abuse is an aggravated battery, the only difference being that the victim is a child.” Brooks, 918 So.2d at 198. However, this reasoning failed to recognize that aggravated battery is not listed in the felony-murder statute, whereas aggravated child abuse is clearly enumerated in the statute.

CONCLUSION

For the foregoing reasons, we hold that the merger doctrine does not preclude a felony-murder conviction predicated upon a single act of aggravated child abuse that caused the child’s death since aggravated child abuse is an enumerated underlying offense in the felony-murder statute. Therefore, we answer the rephrased certified question in the negative, recede from Brooks to the extent that it holds to the contrary, and quash the First District’s decision below.

It is so ordered.

CANADY, C.J., and LEWIS,

POLSTON, LABARGA, and PERRY, JJ., concur.

QUINCE, J., dissents with an opinion.

QUINCE, J.,

dissenting.

I dissent because the single act of aggravated abuse in this case is necessary to prove the felony murder. Thus, the aggravated abuse is a necessarily lesser included offense of the felony murder. This is no different from a case of second-degree murder and manslaughter. Certainly, a defendant could not be convicted of second-degree murder and manslaughter of the same victim.

      . Specifically, the First District asked:
      DOES BROOKS v. STATE, 918 So.2d 181 (Fla.2005), PRECLUDE A CONVICTION FOR FELONY MURDER BASED ON THE PREDICATE OFFENSE OF AGGRAVATED CHILD ABUSE WHEN THE ABUSE CONSISTS OF A SINGLE ACT, NOTWITHSTANDING THE LANGUAGE OF SECTION 782.04(l)(a)2.h„ FLORIDA STATUTES (2007)?

        Sturdivant, 84 So.3d at 1049. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . The jury was instructed on aggravated child abuse as follows:
      To prove the crime of aggravated child abuse the State must prove the following two elements beyond a reasonable doubt. First, Robert Nathan Sturdivant willfully tortured Isaiah Howard or maliciously, punished Isaiah Howard. And second, Isaiah Howard was under the age of 18 years.
      "Willfully” means knowingly, intentionally and purposefully.
      "Maliciously” means wrongfully, intentionally and without legal justification or excuse.
      Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.
      Child abuse means an intentional act that could reasonably be expected to result in physical or mental injury to a child.

      . The merger doctrine is distinct from double jeopardy, which is a constitutional principle. However, this Court has made it clear that there is no double jeopardy concern with dual convictions for aggravated child abuse and felony murder. Lukehart v. State, 776 So.2d 906, 922 (Fla.2000) ("[W]e find Lukehart's argument that double jeopardy principles prohibit the dual convictions of felony murder and aggravated child abuse to be without merit.... This issue was recently addressed by the Third District Court of Appeal.... Judge Cope wrote for the court: 'Simply put, [a] defendant can be convicted of both felony murder and the qualifying felony because the felony murder statute says so.’" (quoting Green v. State, 680 So.2d 1067, 1068 (Fla. 3d DCA 1996))).

      . New York subsequently amended its felony-murder statute to enumerate specific felonies, and New York courts have since declined to extend the merger doctrine in light of this amendment:
      The considerations which prompted our court to announce the merger doctrine do not justify its extension here. We developed this doctrine to remedy a fundamental defect in the old felony-murder statute. Under that statute, any felony, including assault, could be the predicate for a felony murder. Since, a fortiori, every homicide, not excusable or justifiable, occurs during the commission of assault, every homicide would constitute a felony murder.
      This defect was remedied by the Legislature in 1965 by including in the revised Penal Law a list of specified felonies — all involving violence or substantial risk of physical injury — as the only felonies forming a basis for felony murder.

        People v. Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85, 87 (1973) (citation omitted).

      . When the Legislature added aggravated child abuse to the felony-murder statute, see ch. 84-16, § 1, Laws.of Fla., aggravated child abuse was defined as follows:
      Whoever:
      (1) Commits aggravated battery on a child;
      (2) Willfully tortures a child;
      (3) Maliciously punishes a child; or
      (4)Willfully and unlawfully cages a child shall be guilty of a felony of the second degree....
      § 827.03, Fla. Stat. (1983). The current provision specifying the types of aggravated child abuse was adopted in 1996. See ch. 96-322, § 8, Laws of Fla.

      . Sturdivant does not challenge the underlying aggravated child abuse conviction in this Court.

      . The State proposes, as an alternative, that this Court narrow the application of the felony-murder statute in aggravated child abuse murders to "prototypical child abuse murders”; that is, where a caregiver "punishes a child to death.” The State bases this argument on the legislative history of the felony-murder statute. We decline to consider such a construction because "[w]hen the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Koile v. State, 934 So.2d 1226, 1230-31 (Fla.2006) (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005)). Further, this Court has "decline[d] to add words to a statute where ... the language is clear and unambiguous.” State v. Burris, 875 So.2d 408, 414 n. 2 (Fla.2004) (quoting Overstreet v. State, 629 So.2d 125, 126 (Fla.1993)).

      . The holding in Mills that the aggravated battery, a wow-enumerated felony, merges with the homicide is consistent with the reasoning of this case as well as the reasoning of other states applying the merger doctrine where the felony-murder statutes do not enumerate specific predicate felonies. See, e.g., Commonwealth v. Gunter, 427 Mass. 259, 692 N.E.2d 515, 525 (1998) (holding that where statute provided that a murder committed in the commission or attempted commission of a life felony was first-degree murder, acts constituting the underlying felony must be separate from the acts that were a necessary part of the homicide itself and reasoning that "[wjere felonious assault sufficient to support a conviction of murder in the first degree, the distinctions among homicides would be rendered meaningless: all murders in the second degree and manslaughters could be enhanced to murder in the first degree based on the felony-murder theory with assault as the underlying felony.”); State v. Campos, 122 N.M. 148, 921 P.2d 1266, 1271-74 (1996) (holding that because New Mexico felony-murder statute did not enumerate predicate felonies, the predicate felony could not be a lesser-included offense of second-degree murder, reasoning that this holding was necessary in order to avoid improperly elevating the vast majority of second-degree murders to first-degree murders by charging the underlying assaul-tive act as the predicate felony).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Brian Gerard DOHERTY, Respondent.
    No. SC10-332.
    Supreme Court of Florida.
    March 29, 2012.
    Rehearing Denied July 24, 2012.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Henry Lee Paul and Chardean Mavis Hill, Bar Counsel, The Florida Bar, Tampa, FL, for Complainant.
    Brian Gerard Doherty, pro se, Anthem, AZ, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Brian Gerard Doherty be found guilty of professional misconduct and disbarred. Doherty has petitioned for review of the report, challenging the referee’s recommendations as to guilt, as well as the recommended sanction. We have jurisdiction. See art. V, § 15, Fla. Const.

The disciplinary case against Doherty arises from ethical violations that occurred during Doherty’s representation of an elderly client to whom he provided both legal and financial investment services. The referee in this matter recommended that Doherty be found guilty of violating the following Rules Regulating the Florida Bar: 4 — 1.7(a)(2) (Conflict of Interest; Current Clients — Representing Adverse Interests) and 4-1.8(a) (Conflict of Interest; Prohibited and Other Transactions — Business Transactions With or Acquiring Interest Adverse to Client), and disbarred. The Court previously entered an order in this case approving the referee’s findings of fact, recommendations as to guilt, and recommended sanction, and disbarring Do-herty from the practice of law in Florida. See Fla. Bar v. Doherty, No. SC10-3S2, 2012 WL 149337 (Fla. order entered Jan. 17, 2012). This opinion follows.

FACTS

The Florida Bar filed a disciplinary complaint against Respondent Doherty, alleging that he violated several of the Rules Regulating the Florida Bar. A referee was appointed. The referee held evidentiary hearings and has submitted his report for the Court’s review, in which he makes the following findings and recommendations.

Doherty was first admitted to practice law in Massachusetts and New Hampshire in 1978. He was admitted to The Florida Bar in 1987 and eventually moved his practice to this state. In addition to his law practice, Doherty has a background as a financial advisor, and he provides financial planning and investment services to clients.

In 1994, Doherty began a professional relationship with the client and her husband. Originally, Doherty was hired only to provide financial services; Doherty was licensed in Florida to sell certain investment products, particularly annuities. Beginning in 2004, however, he also performed legal work for the couple. In June 2006, the client’s husband died. Following her husband’s death, the client continued to engage Doherty’s legal and financial services. Earlier that year, the client was diagnosed with cancer. Accordingly, she asked Doherty to help her make a number of changes to her investments and estate planning documents.

At the time her husband died, the client owned six annuity products. In an effort to simplify her investments, she asked Do-herty to reduce the number of annuities she owned from six to three. On July 16, 2006, Doherty submitted applications to purchase three annuities from Conseco Insurance Company (Conseco). The referee found that Doherty would have earned a ten percent commission on the sale had it been completed. However, on July 28, Doherty withdrew the applications. On August 1, 2006, he submitted applications to purchase three annuities from Washington National Insurance Company (Washington National), a subsidiary of Conseco. The referee found that Doherty would have earned a seven percent commission on the Washington National annuities. The referee also found that the client would have received an eight percent premium bonus from the purchase of the Washington National annuities, a bonus that would have vested at the time of the sale.

Notably, at the time these transactions took place, Doherty owed Conseco $86,370.54. The referee found that Doherty’s debt had come about due to “charge-backs,” meaning that Conseco was attempting to recapture certain commissions it paid to Doherty because his clients (the purchasers of the annuities) had died within a specified period after the annuity was issued. To satisfy the debt, in March 2006 Doherty and Conseco negotiated a settlement agreement. Pursuant to the agreement, Doherty was required to pay Conse-co $10,000 toward the total debt, as well as fifty percent of any commissions he earned selling Conseco products. If Doherty made no commissionable sales within a six-month period, the entire debt would become due in full and payable on demand.

As noted, Doherty would have received a commission on the sale of Conseco or Washington National annuities to the client. In either case, Conseco would apply fifty percent of the commission to reduce Doherty’s debt pursuant to the settlement agreement. Moreover, while the Conseco annuities would have been subject to a charge-back, such that Conseco would have sought to recover the commission if the client died within one year of the sale, the Washington National annuities did not have a charge-back provision and Doherty’s commission would have fully vested upon consummation of the sale. By this time, it was evident that the client’s health was declining. Indeed, the referee found that Doherty took steps in an attempt to eliminate or reduce the negative consequences that would have resulted if the client died within a year of purchasing the annuities. Ultimately, the client died on August 19, 2006, before any annuity sale could be completed.

In addition to her investments, in the last several weeks of the client’s life Do-herty worked to revise her estate planning documents. On August 10, 2006, the client executed a new will. Pursuant to this will, the full value of her estate passed to an existing trust (the Restated Trust). This would have included the Washington National annuities, had the sale been accomplished. The client named Doherty as her personal representative. She also executed amendments to the Restated Trust to name Doherty as successor trustee. He was given final and uncontestable authority to determine whether certain estate planning methods the client effectuated were successful.

Doherty also authored two new trusts for the client’s estate. The first, a real estate trust, was executed on August 10, 2006. The primary asset in the trust was to be the client’s condominium unit. The trust instructed that the unit be sold and the proceeds from the sale used to purchase annuities. Doherty was named the successor trustee for the real estate trust and was granted sole discretion to select the annuities that would be purchased. Significantly, the referee found that Do-herty’s authority to sell financial products was limited to Conseco or Washington National annuities. The second trust at issue, an educational trust, was also executed on August 10, 2006. It was established to pay future educational expenses for the client’s grandchildren. Doherty was named the successor trustee for the educational trust. However, following the client’s death, the beneficiaries of her estate filed a challenge to Doherty’s appointments as personal representative and successor trustee. He was eventually removed from those positions.

With respect to each of the transactions at issue, the referee found that Doherty assumed “multiple, concurrent yet discreet [sic], professional roles in behalf of [the client], i.e., estate planner, trustee and successor trustee of a number of trusts, financial products salesperson, personal representative, and attorney.” However, the referee also found that Doherty did not provide the client with any written document to advise her of his multiple and conflicting positions. Accordingly, the referee recommended that Doherty be found in violation of two bar rules: 4-1.7(a)(2) (a lawyer shall not represent a client if there is a substantial risk that the representation of the client will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person, or the lawyer’s personal interests) and 4-1.8(a) (a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless the transaction is fair and reasonable to the client, the client is advised in writing of the desirability of seeking independent legal counsel, and the client gives informed, written consent to the essential terms of the transaction).

The referee found four factors in aggravation: (1) Doherty has a prior disciplinary history, including a two-year suspension in New Hampshire; (2) he acted with a selfish motive; (3) he refused to acknowledge the wrongful nature of his misconduct; and (4) he had substantial experience in the practice of law. The referee did not find any mitigating factors. In fact, the referee specifically rejected Doherty’s arguments that he made a timely good faith effort to rectify the consequences of his misconduct and that he was cooperative during the disciplinary proceedings.

Based on the referee’s recommendations of guilt, as well as his findings in aggravation, the referee recommended that Doherty be disbarred. The referee also awarded costs to the Bar.

As noted, Doherty has filed a petition seeking review of the referee’s report and recommendations. Doherty does not challenge the referee’s recommendation that his conduct violated rule 4 — 1.7(a)(2). Thus, we approve that recommendation without further discussion. Doherty does argue that the referee’s recommendation that he be found guilty of violating rule 4-1.8(a) is not supported. He also challenges the referee’s recommended sanction of disbarment.

ANALYSIS

Rule 4-1.8(a). Doherty first challenges the referee’s recommendation of guilt with respect to rule 4-1.8(a). To the extent Doherty disputes the referee’s findings of fact, the Court’s standard of review for evaluating a referee’s factual findings is as follows: this Court’s review of such matters is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998). To the extent he challenges the referee’s recommendation as to guilt, the Court has repeatedly stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005).

Rule 4-1.8(a) provides as follows:

(a) Business Transactions With or Acquiring Interest Adverse to Client. A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer’s fee or expenses, unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

The facts clearly demonstrate that Doherty failed to make the specific written disclosures required by subdivisions (a)(1), (a)(2), and (a)(3). However, Doherty raises a threshold issue. That is, he contends that his involvement in the sale of annuities to the client was not a “business transaction” and thus the disclosure requirements were not triggered. We do not agree. We hold that the sale of annuities to a client in the context presented here is a business transaction and Doherty was required to comply with rule 4-1.8(a).

At the outset, Doherty argues that rule 4-1.8(a) requires the referee to find that he engaged in a business transaction with a client and that he acquired a pecuniary interest adverse to his client. This argument is without merit. Rule 4-1.8(a) clearly states that a lawyer “shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client.” (Emphasis added.) A plain reading of this language indicates that a lawyer’s involvement in a business transaction with a client would itself constitute a violation of the rule unless the lawyer makes the required disclosures. It is not necessary for the referee to also find a violation of the adverse interest clause. See Fla. Bar v. Herman, 8 So.3d 1100, 1105 (Fla.2009) (“[Rule 4-1.8(a)] prohibits two broad categories of conduct: (1) entering into a business transaction with a client; or (2) acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client.”).

Next, Doherty asserts that the sale of an annuity is not the type of “business transaction” that falls within rule 4-1.8(a). He maintains that in brokering the annuities he played no principal role in the transaction — the seller was Washington National and the buyer was the client. Doherty contends that he had no interest in the annuity policy and no ability to affect the client’s rights therein. However, we conclude that rule 4-1.8(a) is not so limited in its scope and application.

Although the language of rule 4-1.8(a) does not identify the types of transactions to which the rule applies, the comment to the rule provides guidance. The comment states:

A lawyer’s legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property, or financial transaction with a client. The requirements of subdivision (a) must be met even when the transaction is not closely related to the subject matter of the representation. The rule applies to lawyers engaged in the sale of goods or services related to the practice of law. See rule 4-5.7.[]

(Emphasis added.) As the referee observed, the comment suggests that rule 4-1.8(a) encompasses a scope of dealings broader than simply those between a lawyer and his or her client as the principals to the transaction. Indeed, this Court has disciplined lawyers under rule 4-1.8(a) for engaging in a variety of business transactions with their clients. See, e.g., Herman, 8 So.3d 1100 (finding a violation of rule 4-1.8(a) where the lawyer invested in a company in direct competition with his client’s corporation); Fla. Bar v. Ticktin, 14 So.3d 928 (Fla.2009) (finding a lawyer in violation of rule 4-1.8(a) where the lawyer took over his client’s role as chairman and CEO of the client’s corporation); Fla. Bar v. Kramer, 593 So.2d 1040 (Fla.1992) (finding a lawyer in violation of rule 4-1.8(a) where the lawyer loaned his client money, secured the loan by instructing the client to execute a deed granting certain property to the lawyer, and failed to disclose the actual nature of the transaction to his client).

We have also considered guidance from the American Bar Association (ABA). The ABA’s Model Rule of Professional Conduct 1.8(a) (Conflicts of Interest: Current Clients: Specific Rules) closely parallels rule 4-1.8(a). Like the Florida rule, Model Rule 1.8 provides that a lawyer shall not enter into a business transaction with a client unless the terms of the transaction are fair and reasonable to the client and are fully disclosed in writing; the client is advised in writing as to the desirability of seeking independent legal counsel; and the client gives his or her informed, written consent. The comment to Model Rule 1.8(a) indicates that the rule “applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer’s legal practice.” (Emphasis added.)

At least one other state has reached the same conclusion that we do here — that a lawyer providing financial planning services to a client is subject to the rule prohibiting a lawyer from engaging in a business transaction with a client unless the lawyer makes the required disclosures in writing. In Stark County Bar Association v. Buttacavoli, 96 Ohio St.3d 424, 775 N.E.2d 818 (2002), the Supreme Court of Ohio sanctioned an attorney who engaged in misconduct similar to that found in this case. In Buttacavoli as in this case, the lawyer was both a practicing attorney and a financial planner and consultant. Id. at 819. A client, a sixty-five-year-old man, hired Buttacavoli to provide estate planning and financial advice. Buttacavoli prepared a will for the client and advised the client to invest funds in a variable annuity. Id. Although Buttacavoli stood to receive a $8,491.71 commission from the sale of the annuity, he did not disclose to the client his own financial interest in the advice he gave. Id. at 819-20. A panel of the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court found that Buttacavoli’s conduct violated the Ohio Code of Professional Responsibility DR 5-101(A)(l) (1996) (absent full disclosure and consent, employment shall not be accepted if the exercise of professional judgment will be or reasonably may be affected by the lawyer’s financial, business, property, or personal interest) and DR 5-104(A) (absent full disclosure and consent, a lawyer shall not enter into a business transaction with a client if they have differing interests therein and the client expects the lawyer to exercise his professional judgment for the protection of the client). Id. at 820. Specifically, the panel determined:

[T]he legal and financial advice was part of an integrated transaction requiring full disclosure of respondent’s financial interest in the investment transactions and informed consent by the clients based upon such full disclosure. Moreover, the panel found that in respondent’s role as attorney, his legal advice could reasonably be affected by his financial interest in the investment advice he offered.

Id. The Ohio Supreme Court adopted the panel’s recommendation.

Like the respondent in Buttacavoli, Do-herty held himself out as a lawyer and a Certified Financial Planner. His professional relationship with the client involved both legal work, including amending her will and executing two trusts on her behalf, and financial services, namely brokering the sale of Conseco and Washington National annuities. It is clear that Doherty stood to earn a commission from the sale of the annuities had those transactions been completed. It is also clear that he did not disclose his financial interest in the transactions to the client in writing as required by rule 4-1.8(a). Accordingly, we approve the referee’s recommendation that Doherty be found guilty of violating rule 4-1.8(a).

Sanction. Doherty next argues that the referee’s recommended sanction, disbarment, is too harsh. He urges the Court to disapprove the referee’s recommendation and, instead, impose a public reprimand.

In reviewing a referee’s recommended discipline, our scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our 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. However, generally speaking this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The evidence demonstrates that Doherty’s conduct created a clear conflict of interest in that there was a substantial risk that his representation of the client would be limited by his own interests. Doherty acted purposefully to make his personal, pecuniary interests at least as important as those of his client and her estate. He advised his client to select various means of estate planning and wealth management that would earn him a personal financial benefit. Additionally, Doherty participated in a business transaction with his client and failed to disclose his substantial interest in the transaction. We believe his actions amount to egregious misconduct.

The Court has often imposed lengthy suspensions in cases where a lawyer’s personal interests created a conflict of interest and in those where a lawyer engaged in a business transaction with a client. See, e.g., Fla. Bar v. Roberto, 59 So.3d 1101 (Fla.2011) (suspending the respondent for one year where the evidence showed that the lawyer’s personal interests created a conflict of interest); Fla. Bar v. Jasperson, 625 So.2d 459 (Fla.1993) (suspending the respondent for one year where the evidence showed that the respondent, in an effort to cover up his failure to file a bankruptcy petition for his clients that would have prevented the foreclosure of their home, purchased the home from the clients to prevent the foreclosure sale moving forward). When the facts in a case show egregious misconduct, particularly where a lawyer acts with a selfish motive or fails to disclose a substantial financial interest, we have imposed significant terms of suspension. In Florida Bar v. Rodriguez, 959 So.2d 150 (Fla.2007), the respondent was a shareholder in a firm hired to represent a group of clients in an action against DuPont Corporation for damages allegedly resulting from the use of a DuPont product, Benlate. During settlement negotiations, the respondent learned that DuPont would not agree to a settlement unless it included a condition that the respondent’s law firm would not pursue any other cases against the company. Id. at 154. After researching the ethical issues involved, respondent’s law office determined that this objective could be achieved if DuPont became a client of the firm. Id. Later, DuPont entered into a secret engagement agreement with respondent’s firm, in which it agreed to pay the firm $6,445,000 in exchange for the firm’s agreement not to pursue future claims against DuPont and for possible future legal work. Id. at 155. At this point, the respondent became an agent of DuPont, and his allegiance to both DuPont and his Benlate clients created a conflict of interest. Further, the respondent and his firm placed their interests above those of the Benlate clients because, among other reasons, the firm stood to receive a significant amount of money. Id. In fact, the respondent received more than $4,700,000 from the arrangement. Id. at 156. The respondent also did not disclose the agreement to the trial judge, to his Benlate clients, or in later proceedings held in the case. The Court found the respondent in violation of numerous bar rules, including rule 4-1.7(a), and suspended him for two years.

Here, we have concluded that Do-herty engaged in egregious misconduct in that he advised his client to take specific actions that would earn him a financial benefit and failed to disclose this personal interest to the client. Moreover, in contrast to the facts of Rodriguez, the referee in this case also found four aggravating factors. Most significantly, Doherty has a prior disciplinary history. In 1997, he was suspended from the Bar in New Hampshire for a period of two years. See In re Doherty’s Case, 142 N.H. 446, 703 A.2d 261 (1997). In the New Hampshire case, Do-herty had agreed to represent two clients in a personal bankruptcy action. He accepted a $10,000 retainer for the representation. Despite the specific rules which required Doherty to disclose his acceptance of the funds and file a motion for court approval, Doherty deposited the money into his general office account without notifying the bankruptcy court and began using the funds for his own purposes. Later, the bankruptcy court ordered Doherty to disgorge the funds. He refused to do so for more than four years after the court’s order. The referee in this case found that Doherty’s conduct displayed a “disregard for the judicial process.”

In addition to his disciplinary history, the referee found that Doherty acted with a selfish motive; he refused to acknowledge the wrongful nature of his misconduct; and he has substantial experience in the practice of law. The referee also considered as aggravation evidence that Do-herty made false statements in applications for errors and omissions insurance policies, concerning his disciplinary history. Doherty refused to acknowledge the false statements in his testimony during the evidentiary hearing. The referee found that Doherty’s sworn denial reflected poorly on his character.

The referee did not find any mitigating factors. Doherty argues that the referee erred in failing to consider certain facts as mitigation. “Like other factual findings, a referee’s findings of mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record. A referee’s failure to find that an aggravating factor or mitigating factor applies is due the same deference.” Fla. Bar v. Germain, 957 So.2d 613, 621 (Fla.2007) (citation omitted). The referee’s report indicates that he considered Doherty’s evidence and testimony but ultimately found that Doherty did not show any circumstances that would mitigate his misconduct. On review before this Court, Doherty has not presented any evidence that would demonstrate that the referee’s findings are clearly erroneous.

In sum, considering the serious nature of Doherty’s misconduct, his disciplinary history, and the aggravating factors, we conclude that disbarment is the appropriate sanction.

CONCLUSION

Accordingly, Brian Gerard Doherty has been disbarred. The disbarment took effect on February 16, 2012.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Brian Gerard Doherty in the amount of $8,787.80, for which sum let execution issue.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Rule Regulating the Florida Bar 4-5.7(a) states, "A lawyer who provides nonlegal services to a recipient that are not distinct from legal services provided to that recipient is subject to the Rules Regulating The Florida Bar with respect to the provision of both legal and nonlegal services.” In subdivision (b), the rule further states that "[a] lawyer who provides nonlegal services to a recipient that are distinct from any legal services provided to the recipient is subject to the Rules Regulating The Florida Bar with respect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship.” The comment to the rule explains that in some circumstances "the legal and nonlegal services may be so closely entwined that they cannot be distinguished from each other.” In such a case, the comment provides that rule 4-5.7 requires the lawyer to be responsible for "assuring that both the lawyer’s conduct and, to the extent required elsewhere in these Rules Regulating The Florida Bar, that of nonlawyer employees comply in all respects with the Rules Regulating the Florida Bar.”

      . Doherty also received reciprocal two-year suspensions in Florida and Massachusetts. See Fla. Bar v. Doherty, 718 So.2d 171 (Fla.1998) (table). He was reinstated in Florida in March 2001. See Fla. Bar v. Doherty, 786 So.2d 581 (Fla.2001) (table).