source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Earl SWEET, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1987
    Supreme Court of Florida.
    [May 24, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Mark S. Gruber, Julie A. Morley, and Margaret S. Russell, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

William Earl Sweet appeals the postconviction court's order denying his sixth successive motion for postconviction relief based on a claim of newly discovered evidence after an evidentiary hearing. For the reasons that follow, we affirm the postconviction court's order denying Sweet relief.

FACTUAL BACKGROUND

In 1991, a jury convicted Sweet of one count of first-degree murder, three counts of attempted first-degree murder, and one count of burglary. Sweet v. State (Sweet I ), 624 So.2d 1138, 1139 (Fla. 1993). On direct appeal, this Court explained the details underlying Sweet's convictions:

On June 6, 1990, Marcine Cofer was attacked in her apartment and beaten and robbed by three men. She could identify two of the men by their street names. On June 26, 1990, she was taken by Detective Robinson to the police station to look at pictures to attempt to identify the third assailant. When Robinson dropped Cofer off at her apartment, William Sweet was standing nearby and saw her leave the detective. Unknown to Cofer, Sweet had previously implicated himself in the robbery by telling a friend that he had committed the robbery or that he had ordered it done. Cofer asked her next-door neighbor, Mattie Bryant, to allow the neighbor's daughters, Felicia, thirteen, and Sharon, twelve, to stay with Cofer in her apartment that night. Mattie agreed, and the children went over to Cofer's apartment around 8 p.m.
At approximately 1 a.m. that evening, Sharon was watching television in the living room of Cofer's apartment when she heard a loud kick on the apartment door. She reported this to Cofer, who was sleeping in the bedroom, but because the person had apparently left, Cofer told Sharon not to worry about it and went back to sleep. Shortly thereafter, Sharon saw someone pulling on the living room screen. She awakened Cofer. The two then went to the door of the apartment, looked out the peephole, and saw Sweet standing outside. Sweet called Cofer by name and ordered her to open the door.
At Cofer's direction, Felicia pounded on the bathroom wall to get Mattie's attention in the apartment next door, and a few minutes later Mattie came over. The four then lined up at the door, with Cofer standing in the back of the group. When they opened the door to leave, Sweet got his foot in the door and forced his way into the apartment. Sweet's face was partially covered by a pair of pants. He first shot Cofer and then shot the other three people, killing Felicia. Six shots were fired. Cofer, Mattie, and Sharon were shot in the thigh, ankle and thigh, and buttock, respectively, and Felicia was shot in the hand and in the abdomen.

Id.

Following the jury's recommendation for death by a vote of ten to two, the trial court sentenced Sweet to death. Id. In imposing the death sentence, the trial court found the following aggravating factors:

(1) Sweet had previously been convicted of several violent felonies, including armed robbery, possession of a firearm by a convicted felon, riot, resisting arrest with violence, and the contemporaneous attempted murders and burglary; (2) the murder was committed to avoid arrest; (3) the murder was committed during a burglary; and (4) the murder was cold, calculated, and premeditated.

Id. at 1142. "The court found no statutory mitigating circumstances, but found as nonstatutory mitigation that Sweet lacked true parental guidance as a teenager. This mitigation was given slight weight." Id.

On direct appeal, this Court affirmed Sweet's convictions and sentence of death. Id. at 1143. Sweet's sentence of death became final in 1994. Sweet v. Florida , 510 U.S. 1170, 114 S.Ct. 1206, 127 L.Ed.2d 553 (1994).

Sweet's Initial Postconviction Motion

In 1995, Sweet filed his initial motion for postconviction relief, raising twenty-eight claims. Sweet v. State (Sweet II ), 810 So.2d 854, 857 n.4 (Fla. 2002). The postconviction court granted an evidentiary hearing on four of Sweet's claims. Id. at 858.

At the evidentiary hearing, Sweet presented the testimony of Anthony McNish, a witness who was subpoenaed to testify at Sweet's trial, but did not appear. Id. at 861. McNish's testimony at the evidentiary hearing was summarized by this Court as follows:

McNish stated that the three men at Cofer's door walked differently than Sweet, and that the three men each had a different skin complexion and physical build than Sweet....
The State established on cross-examination that McNish had been convicted of seven felonies, including crimes involving dishonesty. Further, although he stated at a pretrial deposition that he could not see any of the three mens' faces at Cofer's door, that it was dark, and that he had bad eyesight, he explained at the evidentiary hearing that, after thinking about it, he had a good idea of what the three men looked like. However, he repeated at the evidentiary hearing that he had bad eyesight and never got a good look at the three men. Moreover, McNish never saw any of the men wearing a mask, and he did not actually see the men knock on the door. Finally, McNish stated at the evidentiary hearing that he could identify one of the men that was at Cofer's door now, but he refused to reveal the name of the person. He did state that the man is not Sweet.

Id. at 861-62. Also at the evidentiary hearing on his initial postconviction motion, Sweet presented the testimony of Solomon Hansbury, a witness at Sweet's trial who testified "that Sweet confessed to the murder while they were in jail together." Id. at 867. At the evidentiary hearing, Hansbury recanted his testimony. Id.

After the evidentiary hearing, the postconviction court denied relief. Id. at 858. As to Sweet's claim regarding trial counsel's failure to secure McNish's appearance at trial, the postconviction court found that Sweet "failed to demonstrate either deficient performance or prejudice." Id. at 862. The postconviction court explained that "given McNish's inconsistent testimony at the evidentiary hearing and complete evasiveness regarding a critical piece of newly divulged evidence-some eight years after the fact, the jury would find McNish's testimony to be as incredible as this Court found it to be." Id. Additionally, as to Hansbury's recantation, the postconviction court "expressly rejected Hansbury's testimony at the evidentiary hearing ... as 'incredible.' " Id. at 867.

Sweet appealed the denial of postconviction relief to this Court. As to McNish, this Court agreed with the postconviction court that "Sweet demonstrated neither deficient performance nor prejudice with regard to McNish," and concluded that none of Sweet's claims of ineffective assistance of counsel at the guilt phase "refute[d] the overwhelming evidence of guilt presented by the State." Id. at 862. This Court, likewise, rejected Sweet's cumulative evidence claim concerning Hansbury's recantation after "[c]onsidering all of the testimony presented at the evidentiary hearing." Id. at 867. This Court denied Sweet's other claims and unanimously affirmed the postconviction court's denial of relief. Id. at 871.

Sweet's Sixth Successive Motion for Postconviction Relief

On January 25, 2017, Sweet filed his sixth successive motion for postconviction relief based on newly discovered evidence. The newly discovered evidence was an affidavit executed by Florida state prisoner Eric L. Wilridge, who attested, in part:

On June 26/27, 1990 around 1:30am I was at the laundromat on 4th Market. I was looking down the alley and saw 3 males standing at Dales (Spot). I got on my bike and rode around the corner towards 3rd and market. I ran into Jesse and he said that he relieved [sic] that somebody is gonna rob Dale (Marcene) cause a guy with a ski mask made him knock on their door. About 10 minutes later I rode past Dales (spot) down 3rd and saw a guy standing in the doorway shooting. I couldn't see who it was because he was wearing a ski mask (black/gray). I know it wasn't (William E. Sweet) because of his build, height, and complexion (shorter and lighter). The next morning, I heard a little girl got killed. I didn't come forward earlier because I didn't want to get involved, but an innocent man is on death row. This is what happened.

Sweet's motion also asserted that Cofer, who testified against Sweet at trial, had since come forward and suggested that she may have misidentified Sweet to the police and at trial. Sweet argued that, because "[i]dentification has always been a key issue in this case," an evidentiary hearing was warranted.

The postconviction court granted Sweet an evidentiary hearing "to develop the factual allegations of [Sweet's] claim" regarding Wilridge and "to present additional evidence to support [Sweet's] claim that Ms. Cofer recanted her testimony for the limited purpose of demonstrating any cumulative effect the recantation may have" on Sweet's claim. After the one-day evidentiary hearing, the postconviction court denied relief.

Sweet now appeals the postconviction court's denial of relief, claiming that the postconviction court (1) erred in admitting an arrest record, which indicated that Wilridge was arrested five days before Sweet's offenses; (2) erred in its credibility determinations regarding the testimony of Cofer and Wilridge; and (3) misapplied the Jones standard for newly discovered evidence. For the reasons explained below, we affirm the postconviction court's order denying relief.

I. Admission of the Arrest Record

Sweet claims that the postconviction court erred in admitting an arrest record that was introduced by the State, which showed that Wilridge was arrested five days before the crimes at issue in this case occurred. The State sought to admit the arrest record to show that Wilridge was likely incarcerated at the time of the murder and thus could not have been an eyewitness to the crime. Sweet argues that the arrest record should not have been admitted because it was not timely disclosed to the defense and was not relevant, as it did not conclusively establish that Wilridge was in custody at the time the crimes at issue occurred.

We conclude that the postconviction court did not err in admitting the arrest record. Even if we were to conclude that it was error to admit the record, however, any error would be harmless beyond a reasonable doubt. See Deparvine v. State , 995 So.2d 351, 372 (Fla. 2008) (holding that erroneously admitted evidence was harmless where there was "no reasonable possibility" that the evidence contributed to the defendant's convictions). The trial court's determination of Wilridge's credibility did not rest on the admission of the arrest record, as we more fully explain below.

Accordingly, Sweet is not entitled to relief on this claim.

II. Credibility Determinations

"When reviewing a trial court's determination relating to the credibility of a recantation, this Court is 'highly deferential' to the trial court and will affirm the lower court's determination so long as it is supported by competent, substantial evidence." Lambrix v. State , 39 So.3d 260, 272 (Fla. 2010) (quoting Heath v. State , 3 So.3d 1017, 1024 (Fla. 2009) ). "Postconviction courts hold a superior vantage point with respect to questions of fact, evidentiary weight, and observations of the demeanor and credibility of witnesses." Ibar v. State , 190 So.3d 1012, 1018 (Fla. 2016). "Unlike this Court, 'the trial judge is there and ... see[s] and hear[s] the witnesses presenting the conflicting testimony. The cold record on appeal does not give appellate judges that type of perspective.' " Spann v. State , 91 So.3d 812, 816 (Fla. 2012) (quoting State v. Spaziano , 692 So.2d 174, 178 (Fla. 1997) ).

1. Cofer

Sweet claims that the postconviction court erred in finding that Cofer's recantation testimony was not credible. With regard to recanting testimony, this Court has explained:

Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. In determining whether a new trial is warranted due to recantation of a witness's testimony, a trial judge is to examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. "Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury." Only when it appears that, on a new trial, the witness's testimony will change to such an extent as to render probable a different verdict will a new trial be granted.

Consalvo v. State , 937 So.2d 555, 561 (Fla. 2006) (citations omitted) (quoting Armstrong v. State , 642 So.2d 730, 735 (Fla. 1994) ). If a postconviction court "is not satisfied that the recanted testimony is true, it has a duty to deny the defendant a new trial ." Heath , 3 So.3d at 1024 ; see also Archer v. State , 934 So.2d 1187, 1199 (Fla. 2006) (affirming denial of postconviction relief "because a recantation which is not credible would not produce an acquittal or a life sentence on retrial").

In this case, Cofer's testimony regarding her blurred present memory as to the shooter came twenty-six years after Sweet's trial. Additionally, and importantly, Cofer's testimony at the evidentiary hearing cannot be considered a true recantation, as she testified at the evidentiary hearing on cross-examination by the State that her trial testimony was truthful. However, as the postconviction court explained in its order denying relief, Cofer testified at the evidentiary hearing that "she was now unsure whether [Sweet] was the person who shot her." The postconviction court further explained:

Ms. Cofer claimed that she had been unsure about [Sweet's] guilt for some time, but did not feel it was confirmed until her sister told her in 2013 that [Sweet] was innocent. Ms. Cofer also testified that shortly after speaking with her sister, she was contacted by [Sweet's] sister about recanting her trial testimony. Despite now testifying that [Sweet] was not the true perpetrator, she claimed that what she testified to at the time of the trial was true. Ms. Cofer did not provide any specific details to explain how she went from being able to concretely identify [Sweet] as the perpetrator to now questioning her identification.
While Ms. Cofer's testimony was credible at trial, her testimony at the Evidentiary Hearing was not. Ms. Cofer testified that her memory "goes in and out" and is "blurry." She also testified that she smokes approximately fifteen marijuana blunts a day and that she had consumed five marijuana blunts prior to testifying at the Evidentiary Hearing. Ms. Cofer's demeanor at the Evidentiary Hearing suggested that she was on friendly terms with [Sweet] and had a vested interest in seeing [Sweet's] conviction overturned despite his culpability. Based on Ms. Cofer's testimony it is clear to the Court that with the passage of time and Ms. Cofer's drug use, her memory of the offenses has faded. Her fading memory was then influenced by statements made to her by her sister and [Sweet's] sister that [Sweet] was not the true perpetrator.

We conclude that this finding is supported by competent, substantial evidence.

Accordingly, Sweet is not entitled to relief on this claim.

2. Wilridge

Sweet next argues that the postconviction court erred in finding that Wilridge was not credible. Like the delay in Cofer's recantation, Wilridge did not come forward for more than twenty-four years after the offenses. See Jones , 709 So.2d at 521-22 ("Where ... some of the newly discovered evidence includes the testimony of individuals who claim to be witnesses to events that occurred at the time of the crime, the trial court may consider both the length of the delay and the reason the witness failed to come forward sooner."). Additionally, Wilridge is a seven-time convicted felon, who is currently serving a life sentence for which he has been incarcerated since October 26, 1991. See Clark v. State , 35 So.3d 880, 893 (Fla. 2010) (affirming the denial of postconviction relief where the newly discovered evidence came from an inmate serving multiple sentences, noting that the inmate "would probably not serve as a credible witness at a new trial").

Further, as the postconviction court explained in its order denying relief:

Mr. Wilridge's explanation for why he waited over twenty-four years to come forward with this possibly exonerative information was that he did not want to become involved with law enforcement. Mr. Wilridge claimed that his guilty conscious [sic], caused by knowing an innocent man was going to be executed, is what made him finally come forward. Then, a few months prior to the Evidentiary Hearing occurring, Mr. Wilridge had an abrupt change of heart. He wrote two letters, one to the Court and one to the State Attorney Office for the Fourth Judicial Circuit, in which he claimed his affidavit about [Sweet's] case was invalid and inaccurate. Further, in the letter to the Court, Mr. Wilridge even went so far as to specify that he did not remember anything from that night pertaining to [Sweet's] case.
At the Evidentiary Hearing, Mr. Wilridge's inconsistency in what he observed concerning the offenses continued. In his affidavit, Mr. Wilridge stated that on the night of the offense he initially saw three men standing around Ms. Cofer's apartment, but at the Evidentiary Hearing he testified that while he saw three individuals, they were too far away for him to see any identifying features, including whether they were male or female. Mr. Wilridge also wrote in his affidavit that he saw a man standing in the doorway shooting into Ms. Cofer's apartment, but at the Evidentiary Hearing he testified that he saw a man standing in the doorway with his hand extended and did not see a gun or shots being fired. Mr. Wilridge further testified that it was only after riding away that he heard gunshots, which he claimed was common to hear in the neighborhood.

We conclude that this finding is supported by competent, substantial evidence.

Accordingly, Sweet is not entitled to relief on this claim.

III. Newly Discovered Evidence

Lastly, Sweet claims that the postconviction court misapplied the Jones standard for newly discovered evidence. "When the trial court rules on a newly discovered evidence claim after an evidentiary hearing, we review the trial court's findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence." Green v. State , 975 So.2d 1090, 1100 (Fla. 2008). "As with rulings on other postconviction claims, we review the trial court's application of the law to the facts de novo." Id.

With regard to claims of newly discovered evidence, this Court has explained:

To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State , 709 So.2d 512, 521 (Fla. 1998) ( Jones II ). Newly discovered evidence satisfies the second prong of this test if it "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Id. at 526 (quoting Jones v. State , 678 So.2d 309, 315 (Fla. 1996) ( Jones I ) ). In determining whether the evidence compels a new trial, the trial court must "consider all newly discovered evidence which would be admissible," and must "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Jones v. State , 591 So.2d 911, 916 (Fla. 1991).

Id. at 1099.

After finding that Cofer and Wilridge were not credible, the postconviction court turned to consider the cumulative effect of all evidence that could be presented at a new trial. The court considered the additional evidence presented at the evidentiary hearing on Sweet's initial postconviction motion of McNish's testimony and Hansbury's recantation. After noting its previous findings that neither McNish's testimony nor Hansbury's recantation was credible, the postconviction court concluded that "[i]n light of all the evidence presented at the evidentiary hearing and all other evidence available," Wilridge's newly discovered evidence and Cofer's recantation "would not produce a reasonable probability of a different outcome at a new trial." Thus, it is clear that the postconviction court properly applied the Jones standard to Sweet's claim.

Accordingly, Sweet is not entitled to relief on this claim.

CONCLUSION

For the reasons stated, we affirm the postconviction court's order denying Sweet's sixth successive motion for postconviction relief.

It is so ordered.

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

      We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

      Sweet's initial postconviction claims included:
      (1) Sweet was denied access to public records; (2) the one-year time limitation for filing a rule 3.851 motion for postconviction relief violate[d] Sweet's due process and equal protection rights; (3) the "felony murder" statutory aggravating circumstance constitute[d] an unconstitutional "automatic statutory aggravating circumstance"; (4) the "avoid arrest" statutory aggravator was inapplicable in this case and the jury was erroneously instructed regarding this aggravator because the trial court improperly failed to further instruct the jury that the aggravator can only be found where it is the "dominant or only" motive for the defendant's commission of the murder; (5) the trial court's jury instruction on the "cold, calculated, and premeditated" aggravator was erroneous because it failed to instruct the jury that this aggravator required "heightened premeditation" and the evidence failed to establish the necessary heightened premeditation necessary to support this aggravator; (6) the Jacksonville Sheriff's Office destroyed all of the evidence in this case, depriving Sweet of his right to conduct an independent analysis of this evidence using his own experts; (7) ineffective assistance during the guilt phase by: (a) failing to conduct an adequate pretrial investigation and preparation of Sweet's case; (b) failing to investigate other possible sources who would have had a motive to kill Marcine Cofer; and (c) failing to properly cross-examine Marcine Cofer and Solomon Hansbury; (8) ineffective assistance by failing to investigate and prepare available mitigation evidence regarding Sweet's background; (9) Sweet was denied his right to a fair trial as a result of his jury being subjected to improper influences; (10) the jury was given inadequate instructions on the "prior violent felony," "great risk," "avoiding arrest," and "cold, calculated, and premeditated" aggravators; (11) Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibits attorneys from interviewing jurors, caused his postconviction counsel to render ineffective assistance of counsel; (12) Sweet is innocent of first-degree murder and innocent of the death penalty; (13) the record fail[ed] to show his presence or his counsel's presence at five sidebar conferences and counsel rendered ineffective assistance by failing to object; (14) improper prosecutorial comments during the penalty phase in arguing that the jury should not be sympathetic towards Sweet and ineffective assistance in failing to object to this comment and in failing to request a "mercy instruction"; (15) alleged omissions in the record on appeal deprived him of meaningful appellate and postconviction review and trial counsel rendered ineffective assistance in failing to ensure a complete record; (16) the trial court's failure to ensure that Sweet had a complete record on appeal deprived him of a proper direct appeal; (17) Sweet received a fundamentally unfair trial due to the sheer number and types of errors committed; (18) the penalty phase jury instructions improperly shifted the burden to Sweet to show that death was not the appropriate sentence for the jury to recommend; (19) the State's misleading evidence and improper argument deprived Sweet of a fair trial; (20) Sweet's contemporaneous felonies were improperly used to support the prior violent felony aggravator; (21) the State failed to prove that Sweet "knowingly" created a great risk of causing the death of other persons given that his mental state at the time of the murder prevented him from knowing this fact; (22) the trial court improperly used a prior possession of a firearm by a convicted felon conviction as a statutory aggravator because the conviction was unconstitutionally obtained; (23) Florida's death penalty statute is unconstitutional on its face and as applied; (24) the trial court erred in failing to consider nonstatutory mitigating circumstances; (25) the State's introduction of and argument regarding nonstatutory aggravators deprived Sweet of a fair sentencing recommendation; (26) the State's closing argument and the jury instructions during the penalty phase improperly diminished the jury's sense of responsibility in the sentencing process; (27) trial counsel failed to provide the two court-appointed mental health examiners with sufficient background information to allow them to adequately evaluate Sweet's competency to stand trial; and (28) the mental health officials that examined Sweet failed to render adequate mental health assistance.
      Id. at 857 n.4.

      Sweet's subsequent petition for a writ of habeas corpus filed in this Court was also denied. Sweet v. Moore , 822 So.2d 1269 (Fla. 2002).
      Sweet filed a successive motion for postconviction relief in 2003, raising a claim under Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which the postconviction court denied as untimely and facially insufficient. This Court affirmed without opinion. See Sweet v. State , 900 So.2d 555 (Fla. 2004).
      Sweet filed a third successive motion for postconviction relief, raising a claim under Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The postconviction court denied the claim, and this Court affirmed without opinion. Sweet v. State , 934 So.2d 450 (Fla. 2006). Sweet's petition for a writ of habeas corpus in federal court was dismissed as untimely. See Sweet v. Sec'y, Dep't of Corr. , 467 F.3d 1311 (11th Cir. 2006). Sweet's fourth and fifth successive motions for postconviction relief were also denied; Sweet did not appeal.

      While this case was pending, Sweet filed a seventh successive motion seeking relief under Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Sweet appealed the postconviction court's denial of that motion and, upon review, this Court affirmed. Sweet v. State , 234 So.3d 646 (Fla. 2018).

      In 2014, Sweet filed a successive pro se motion for postconviction relief, in which he alleged that Cofer recanted her trial testimony and an evidentiary hearing was warranted. This motion was stricken because Sweet was represented at the time of the filing and his then-counsel did not adopt the motion.

      Jones v. State , 709 So.2d 512 (Fla. 1998).


text:
    THE FLORIDA BAR, Complainant, v. Byron Gregory PETERSEN, Respondent.
    No. SC14-1942
    Supreme Court of Florida.
    [July 5, 2018]
    Joshua E. Doyle, Executive Director, Tallahassee, Florida, Navin A. Ramnath, Bar Counsel, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    Byron G. Petersen, pro se, Boca Raton, Florida, for Respondent
   PER CURIAM.

We have for review a referee's report recommending that Respondent, Byron Gregory Petersen, be found guilty of professional misconduct and suspended from the practice of law for a period of ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. As more fully explained below, after consideration of the referee's report, the parties' briefs, the response to the Court's order to show cause why the referee's recommended discipline should not be disapproved and a more severe sanction, up to a three-year suspension, be imposed, and The Florida Bar's (Bar) reply, we approve the recommendations pertaining to the alleged rule violations but disapprove the proposed discipline and suspend Petersen for a period of three years.

BACKGROUND

In October 2014, the Bar filed a complaint alleging that Respondent Petersen engaged in misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules). A referee was appointed to consider the matter. The referee submitted a report and recommendations for the Court's consideration. The Court considered the referee's report, and Petersen's challenges thereto. Thereafter, on November 6, 2017, the Court issued an order directing Petersen to show cause why the referee's recommended discipline, a ninety-one day suspension, should not be disapproved and a more severe sanction, up to and including a three-year suspension, imposed. Petersen filed a response to the Court's order and the Bar filed a reply. Petersen also filed a "Motion for Sanctions Directed to the Response of The Florida Bar's Staff to Show Cause Order," as well as several notices of supplemental authority that are primarily aimed at establishing the correctness of his actions.

FACTS

Beginning in 2005, Petersen was retained by Robert and Wendy Gielchinsky to represent the couple and their various business organizations. The testimony indicates that Petersen represented the Gielchinskys in a number of legal matters; however, three cases are at issue here:

The Vibo Case. In late 2004 or early 2005, Robert Gielchinsky and his company, the North American Tobacco Import Company, filed a lawsuit against the Vibo Corporation in the Eleventh Judicial Circuit, alleging breach of settlement agreement and other claims (the Vibo case). This lawsuit arose out of an earlier 2002 case, where Gielchinsky sued Vibo for interference with his intellectual property rights to the Bronco cigarette brand; the case settled when Gielchinsky assigned his intellectual property rights to Vibo in return for certain specified payments. In this subsequent lawsuit, Gielchinsky alleged that Vibo breached the settlement agreement by failing to make the required payments. The complaint was amended several times, but ultimately sought both monetary damages and return of the intellectual property rights.

Petersen was originally brought in as co-counsel on the Vibo case. His original fee agreement appears to have provided for a $3,000 monthly retainer fee, as well as some percentage of the recovery. However, Petersen later took over as sole counsel on the case, and his fee agreement was modified several times. In February 2008, Petersen and the Gielchinskys signed an "Authority to Represent and Contingency Fee Agreement," where Petersen would receive ten percent of "any recovery" resulting from the Vibo case. Subsequently, in September 2008, Petersen and the Gielchinskys signed an "Amendment to February 2008 Authority to Represent and Contingency Fee Agreement," giving Petersen fifteen percent of "any recovery from any source" resulting from the Vibo case. Then in April 2010, Petersen drafted, and the Gielchinskys signed, a "Retainer Agreement Addendum." The addendum stated:

In the Vibo case I think that my firm's fee agreement with you and Wendy not only covers a percentage "recovery" against a money judgment but also would cover a percentage "recovery" from any assets transferred to you in settlement or through trial (such as a transfer of the Bronco brand to you) or a hybrid of the two. The total recovery for the aforementioned representation is not to exceed $5,000,000.00 (five million dollars). Please print this out, sign below, scan this, and email the scan PDF to me letting me know that you agree with this clarification.

The addendum is signed and dated April 9, 2010.

The referee found that litigation in the Vibo case continued on for several years, and as the case progressed it became clear that the intellectual property rights to the Bronco brand would be the portion of the settlement worth the greatest value, while the monetary damages would be relatively small. The Gielchinskys testified they believed that Petersen's fee would be based on the monetary recovery in the case, while Petersen stated that the fee agreement always contemplated a percentage of the non-monetary recovery. The referee found:

Whether with [the April 2010] addendum or whether with the initial fee agreement or its subsequent revisions, Respondent gained a pecuniary interest in the litigation which could be adverse to the Gielchinskys. Respondent failed to advise the Gielchinskys in writing that they could and/or should seek independent legal counsel to review the initial fee agreement or subsequent revisions ... or addendum prior to execution and failed to give them the opportunity to do so as required by the Rules Regulating The Florida Bar.

The referee also heard testimony from Petersen's former paralegal, Christina Broder. She testified that Petersen made an intentional effort to create conflicts of interest with the Gielchinskys. The referee stated:

Because Respondent was handling many of the Gielchinskys' cases on a contingency fee basis, Respondent could not simply withdraw. If Respondent chose to withdraw from the contingency case without good cause, Respondent would be unable to claim an interest in any recovery received after his withdrawal. In order to withdraw from the cases and still have a claim to fees, Respondent had to show good cause. A conflict of interest with a client is good cause to withdraw from a contingency fee case and still have the ability to make a claim for fees.

In his effort to create conflicts, the referee found that Petersen neglected cases, he failed to effectively communicate with the Gielchinskys, he lost or misplaced documents and evidence that the Gielchinskys were entitled to, and he made misrepresentations to the clients.

In addition, the evidence indicates the case settled in February 2011. Following the settlement, both Petersen and his co-counsel, Ronald Weil (who had been retained in anticipation of a trial), filed charging liens. Petersen was represented by an independent attorney on the charging lien matter. In September 2011, the trial court held a hearing to address the liens; among other witnesses, the court heard testimony from Attorney Robert Josephsberg on the ethics of the fee agreement. Thereafter, on January 26, 2012, the court entered an Order which found, in relevant part, as follows:

This Court finds that pursuant to the terms of the retainer agreement and an email addendum Byron G. Petersen, P.A. is to receive fifteen percent (15%) of the total settlement monetary funds of two hundred twenty five thousand dollars and no cents ($225,000), which is thirty three thousand seven hundred fifty dollars and no cents ($33,750.00).
This Court finds that pursuant to the terms of the retainer agreement Byron G. Petersen, P.A. is to credit Plaintiffs twenty four thousand dollars and no cents ($24,000.00) that will be applied against the fifteen percent (15%) of the settlement monetary funds allocated to Byron G. Petersen. P.A.
This Court finds that pursuant to the terms of the retainer agreement Byron G. Petersen, P.A. is to also receive his documented costs, accompanied with a cost statement and supporting receipts to be finalized at a future hearing.
This Court finds that Byron G. Petersen, P.A. is entitled to a fifteen percent (15%) of the Plaintiffs consent Judgment for seven million dollars and no cents ($7,000,000) against Vibo Corporation and Trademark Holdings, LLC entered in Gielchinsky et. Al v. Vibo Corporation , Case No.: 04-23115 CA 22, in favor of Gielchinsky/North American Tobacco Co and/or his/it's assigns.
This Court finds that Byron G. Petersen, P.A. is entitled to a fifteen percent (15%) ownership interest in the subject intellectual property "Bronco". However, at such time as Byron Petersen, P.A. realizes the sum of five million dollars and no cents ($5,000,000) from any income stream emanating from the BRONCO brand, then and in that event, Byron Petersen's said fifteen percent (15 %) ownership interest in the subject intellectual property "BRONCO" shall automatically revert back to Plaintiff, Robert Gielchinsky by operation of law .
This Court enters a six (6) month stay to allow Plaintiffs to pursue business ventures relating to the subject intellectual property whereby Byron G. Petersen, P.A. may not foreclose any liens or attempt to damage any business interests or operations related to the intellectual property that Plaintiff may establish or attempt to establish.

(Emphasis added.)

The Aldar Case. Beginning in 2008, Petersen represented another of Robert Gielchinsky's companies, the Aldar Tobacco Group, in litigation in the United States District Court for the Southern District of Florida. In July 2011, Petersen withdrew as counsel for Aldar. Subsequently, in September 2011, he filed a notice of charging lien. Aldar, through its successor counsel, filed a motion to strike the lien, arguing that Petersen represented Aldar on a contingency basis, and because he withdrew from the representation prior to the conclusion of the case, he was not entitled to recover fees.

In July 2012, a federal magistrate held a hearing on the matter. During the hearing, Robert Gielchinsky testified that Petersen agreed to take the Aldar case on a contingency fee basis. Petersen's former paralegal, Ms. Broder, also testified that it was her understanding Petersen had taken the case on a contingency fee. In contrast, Petersen testified that he had undertaken the case on an hourly fee arrangement. However, the referee noted that during both the federal hearing and in the proceedings here, evidence was presented that Petersen had submitted documents in his personal bankruptcy case indicating that he represented Aldar on a contingency fee basis. On February 7, 2013, the magistrate issued an order finding the testimony from Mr. Gielchinsky and Ms. Broder credible, and concluded that Petersen took the Aldar case on a contingency fee. The magistrate noted that, according to Florida case law, an attorney's entitlement to recover fees under a contingency fee agreement where the attorney withdraws prior to the occurrence of the contingency depends on whether the attorney voluntarily withdrew, or whether the attorney is either discharged without cause or the client's conduct makes withdrawal necessary. On this issue, the magistrate found:

The Court finds that it was not the client's conduct which necessitated Mr. Petersen's withdrawal from representation in this case. In fact, it was Petersen's obstructive behavior, adverse to the client's interest in the Vibo case, that created the conflict. The credible evidence presented demonstrates that Petersen was disappointed with the settlement in Vibo, and sought to extract a better deal for himself from his client.... Now, in this case, Petersen is demanding payment despite his withdrawal on the eve of trial, but he has presented no credible evidence substantiating the hourly fee agreement he contends is operative.

Accordingly, the magistrate granted the motion to strike the charging lien. The United States District Court adopted the magistrate's order, and the United States Court of Appeals for the Eleventh Circuit affirmed.

The Pool People Case. In 2005, Petersen represented Wendy and Robert Gielchinsky in a lawsuit in Broward County, against a company that had installed a pool in their family home. The referee found that the Gielchinskys paid Petersen $6,500 for the representation.

Petersen filed the complaint in the Pool People case in March 2005, and conducted some preliminary discovery; however, the referee found that he took little or no significant action in the case thereafter. On August 4, 2009, the circuit court dismissed the case for lack of prosecution. Petersen appealed the dismissal to the Third District Court of Appeal, and the district court reversed the circuit court's order. The case was reinstated in February 2011. However, the referee found that Petersen again failed to take any significant action.

In the proceedings before the referee, the Gielchinskys each testified that Petersen never communicated with them about the progress of the Pool People case despite their attempts to discuss it with him, he did not notify them that they needed to hire an expert, and he did not tell them that the case could be dismissed for lack of prosecution. In contrast, Petersen testified that he did not move the case along because the Gielchinskys told him to focus on other more important cases, and because the Gielchinskys never hired an expert to prove the case. The referee found: "By failing to take any significant action on the Pool People case for his clients, Respondent failed to competently and diligently represent the Gielchinskys."

After the Pool People case was reinstated, in June 2011 Petersen filed a motion to withdraw as counsel (based on the conflicts of interest in the Vibo case). At that time, the Gielchinskys lived out of the state and the referee found that Petersen failed to coordinate with them on a hearing date. When the hearing was held, Petersen submitted a proposed order to the presiding judge, granting the motion to withdraw. The order indicated that opposing counsel did not object. The referee found:

In truth and in fact, Respondent had failed to give notice of the hearing to opposing counsel.... Opposing counsel was unable to voice any objection or agreement because counsel was unaware of the hearing. By making such statement in the Order submitted to the judge, Respondent made a material misrepresentation to the court.

The order also stated the Gielchinskys had no objection to Petersen's withdrawal, when in fact they did object to Petersen "abandoning" the case.

Finally, in addition to Petersen's conduct in his representation of the Gielchinskys, the referee also found that he did not timely respond to the Bar's inquiries in this disciplinary proceeding. Ms. Broder filed a complaint with the Bar in September 2011; on September 7, the Bar sent a letter to Petersen at his record Bar address asking him to respond to the complaint. Petersen, through counsel, filed several requests for extensions of time; the final extension directed Petersen to respond by February 15, 2012. Petersen did not respond within the time allowed. However, in November 2012, he submitted a written response to the Investigating Member of the grievance committee; he did not provide a copy of the response to the Bar.

Based upon the above findings of fact, the referee recommended that Petersen be found guilty of violating the following Bar Rules: 3-4.2 (violations of the Rules of Professional Conduct is cause for discipline);

3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute cause for discipline); 4-1.1 (a lawyer must provide competent representation to a client); 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a) (a lawyer shall: promptly inform the client of any decision or circumstance that requires the client's informed consent; reasonably consult with the client about the means by which to accomplish the client's objectives; keep the client reasonably informed about the status of the matter; and promptly comply with the lawyer's reasonable requests for information); 4-1.5(a) (an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee); 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); 4-3.3(a)(1) (a lawyer shall not knowingly make a false statement of 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 may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person); 4-8.4(a) (a lawyer shall not violate the Rules of Professional Conduct); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice); and 4-8.4(g) (a lawyer shall not fail to respond, in writing, to any official inquiry by bar counsel or a disciplinary agency).

In determining the recommended sanction, the referee found five aggravating factors: Florida Standards for Imposing Lawyer Sanctions (Standards) 9.22(a) (prior disciplinary history); 9.22(b) (dishonest or selfish motive); 9.22(c) (a pattern of misconduct); 9.22(d) (multiple offenses); and 9.22(i) (substantial experience in the practice of law). The referee also found one mitigating factor: Standard 9.32(g) (character or reputation). Additionally, before recommending discipline, the referee considered Standards 4.42 (Suspension is appropriate when: a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or b) a lawyer engages in a pattern of neglect 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), 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). Finally, the referee considered case law that supported a suspension in length between ten days and one year.

Based on her findings of fact, recommendations as to guilt, the aggravating and mitigating factors, the Standards, and case law, the referee recommended that Petersen be suspended from the practice of law for ninety-one days. As discussed below, we disapprove the recommended discipline and determine that Petersen's misconduct warrants a three-year suspension.

ANALYSIS

Petersen challenges the referee's recommendation that he be found guilty of violating the Bar Rules as alleged in the Bar's complaint. To the extent he challenges the referee's findings of fact as to each rule violation, the 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 Petersen challenges the recommendations as to guilt, the referee's factual findings must be sufficient under the applicable rules to support the recommendations. See Fla. Bar v. Shoureas , 913 So.2d 554, 557-58 (Fla. 2005).

Here, it is clear that Petersen devoted a significant portion of his practice to representing the Gielchinskys in various litigation, including the Vibo case that had the potential to be worth millions of dollars. In reviewing the evidence and testimony that was presented to the referee, it is apparent that Petersen and the Gielchinskys have very different views of the events, and both Petersen and the Bar presented testimony and evidence that arguably would support their positions. Ultimately, this case is one that comes down to witness credibility-the referee found the testimony from Robert and Wendy Gielchinsky and other Bar witnesses more credible than Petersen's testimony. This Court has long held, "The referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect." Fla. Bar v. Tobkin , 944 So.2d 219, 224 (Fla. 2006) (quoting Fla. Bar v. Thomas , 582 So.2d 1177, 1178 (Fla. 1991) ). As discussed below, we defer to the referee's credibility assessments and approve the recommendations as to guilt.

Rule Violations

Bar Rules 4-1.1 and 4-1.3. The referee found that Petersen failed to act competently and diligently on behalf of his clients, in violation of Bar Rules 4-1.1 and 4-1.3. This finding stems from Petersen's conduct representing the Gielchinskys in the Pool People case, which was filed in March 2005. The testimony and evidence before the referee indicates that there were a number of filings and other record activity through 2007; however, from 2007 to 2009 there was little or no activity in the case. On August 4, 2009, the trial court dismissed the Pool People case for lack of prosecution. Petersen argues that he intentionally did not move the case forward based on direction from the Gielchinskys, who asked him to focus on other, higher priority cases. While there is some support for Petersen's claim, i.e., Robert Gielchinsky testified that he told Petersen to treat the Vibo case as a higher priority and Petersen's opposing counsel in the Pool People case also testified that neither party wanted the case to move forward during this period, and that neither party wanted to continue spending money on legal fees to pursue a $1,300 lien, both Wendy and Robert Gielchinsky testified that they never told Petersen to stop prosecuting the case altogether, and Petersen never told them the case could be subject to dismissal. It is evident that the referee weighed the credibility of the witnesses, and found the Gielchinskys' testimony more credible. The Court has made clear that an attorney cannot meet his burden to show that a referee's credibility assessments are incorrect "by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record to support the referee's findings." Fla. Bar v. Glueck , 985 So.2d 1052, 1056 (Fla. 2008). Moreover, even if the Gielchinskys did tell Petersen to focus his attention on higher priority cases, Petersen nonetheless had an ethical obligation to both his clients and the legal system to ensure that the case was moving forward. Accordingly, we approve the referee's recommendation that Petersen violated Bar Rules 4-1.1 and 4-1.3.

Bar Rule 4-1.4(a). Bar Rule 4-1.4(a) provides in relevant part that a lawyer shall promptly inform the client of any decision or circumstance that requires the client's informed consent; reasonably consult with the client about the means by which to accomplish the client's objectives; keep the client reasonably informed about the status of the matter; and promptly comply with the client's reasonable requests for information. The referee's recommendation as to this rule violation stems at least in part from Petersen's representation in the Pool People case. The referee also found that among his other efforts to create conflicts, Petersen "neglected cases and failed and refused to effectively communicate with the Gielchinskys."

The Gielchinskys testified that Petersen failed to communicate with them about hearings and other events in the Pool People case. However, Petersen submitted evidence of a number of emails exchanged with Robert Gielchinsky advising him of various filings, hearings, or discussions with opposing counsel. The bulk of these emails are dated in 2007 (though there are some in 2009 related to the dismissal). Still, there is no indication that Petersen communicated with the clients about the Pool People case at all from 2007 to 2009, and particularly as to the important fact that their case may be subject to dismissal based on inactivity. Therefore, we approve the referee's recommendation that Petersen violated Bar Rule 4-1.4(a).

Bar Rule 4-1.5(a). Bar Rule 4-1.5(a) provides that an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee. Here, the Bar's complaint alleged that Petersen's $6,500 fee in the Pool People case constituted an excessive fee because he took little or no action to prosecute the case. At the hearing before the referee, the Gielchinskys testified that they had made frequent attempts to communicate with Petersen about moving the case forward, and that Petersen failed to ever inform them that they needed to hire an expert to support the case. Based upon the foregoing, we approve the referee's recommendation that Petersen be found guilty of violating Bar Rule 4-1.5(a).

Bar Rule 4-1.8(a). Bar Rule 4-1.8(a) provides that a lawyer shall not enter into a business transaction with a client "or knowingly acquir[e] 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 in writing; (2) the client is advised in writing and given a reasonable opportunity to seek the advice of independent legal counsel; and (3) the client gives informed consent in writing. The comment to Bar Rule 4-1.8 explains that the rule does not apply to "ordinary fee arrangements between client and lawyer, which are governed by rule 4-1.5, although its requirements must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment for all or part of a fee."

Here, there is no dispute that Petersen did not advise the Gielchinskys to seek independent legal counsel before executing the September 2008 fee agreement or the April 2010 addendum to that agreement. A threshold issue, however, is the question whether these agreements gave Petersen an "ownership, possessory, security, or other pecuniary interest adverse to a client," such that he was required to comply with the provisions of Bar Rule 4-1.8(a). As found by the referee, Petersen's fee agreements, and in particular the 2010 addendum, gave him a pecuniary or possessory interest in the litigation that was adverse to the Gielchinskys' interests.

In September 2008, Petersen and the Gielchinskys signed an "Amendment to February 2008 Authority to Represent and Contingency Fee Agreement" giving Petersen fifteen percent of "any recovery from any source" resulting from the Vibo case. In April 2010, Petersen drafted a "Retainer Agreement Addendum," which stated:

In the Vibo case I think that my firm's fee agreement with you and Wendy not only covers a percentage "recovery" against a money judgment but also would cover a percentage "recovery" from any assets transferred to you in settlement or through trial (such as a transfer of the Bronco brand to you) or a hybrid of the two. The total recovery for the aforementioned representation is not to exceed $5,000,000.00 (five million dollars). Please print this out, sign below, scan this, and email the scan PDF to me letting me know that you agree with this clarification.

The Gielchinskys signed the addendum on April 9, 2010. The Vibo case settled in February 2011, and the settlement included, among other recovery, the return of the intellectual property rights for the Bronco cigarette brand to the Gielchinskys. Both Petersen and his co-counsel, Ronald Weil, filed charging liens to secure their fees. Judge Venzer, the presiding judge in the Vibo case, held a hearing to address the charging liens in September 2011. Following the hearing, on January 26, 2012, Judge Venzer entered her order finding that Petersen was entitled to receive fifteen percent of the monetary judgment, fifteen percent "of the Plaintiffs [sic] consent Judgment for seven million dollars and no cents ($7,000,000)," and as follows:

This Court finds that Byron G. Petersen, P.A. is entitled to a fifteen percent (15%) ownership interest in the subject intellectual property "Bronco". However, at such time as Byron Petersen, P.A. realizes the sum of five million dollars and no cents ($5,000,000) from any income stream emanating from the BRONCO brand, then and in that event, Byron Petersen's said fifteen percent (15 %) ownership interest in the subject intellectual property "BRONCO" shall automatically revert back to Plaintiff, Robert Gielchinsky by operation of law.

Given these facts, Petersen's fifteen percent contingency fee was to be calculated based on the Gielchinskys' total recovery in the Vibo settlement, including both their monetary recovery and their non-monetary recovery in the form of the intellectual property rights to the Bronco cigarette brand. It was through his charging lien and Judge Venzer's order that Petersen acquired a fifteen percent "ownership interest" in the brand (an interest that would revert back to the Gielchinskys when Petersen's fee reached its cap at $5 million).

This Court has disciplined lawyers for violations of Bar Rule 4-1.8(a) for engaging in a variety of different transactions with a client. In Florida Bar v. Doherty , 94 So.3d 443 (Fla. 2012), the Court disbarred a lawyer who performed both legal and financial investment services for a client, including brokering the sale of annuities that would have resulted in a significant commission for the lawyer; a portion of Doherty's commission would have automatically been paid to the seller of the annuities to satisfy Doherty's debt to the company. Doherty did not advise the client of his financial interest in the transaction. In Florida Bar v. Herman , 8 So.3d 1100 (Fla. 2009), the Court suspended a lawyer for eighteen months for investing in a company that was in direct competition with a client's company, and for hiring his client's top salesman to run the company, without disclosing his activities to the client. In Florida Bar v. Ticktin , 14 So.3d 928 (Fla. 2009), the Court suspended an attorney for ninety-one days for taking over his client's role as chairman and CEO of the client's corporation without advising his client in writing of the conflicts of interest. And in Florida Bar v. Maynard , 672 So.2d 530 (Fla. 1996), the Court disbarred an attorney for, among other misconduct, convincing his client to loan money to a company in which the attorney had a substantial interest, without reducing the transaction to writing or advising the client to seek independent legal advice.

Here, as the facts in this case demonstrate, when a client's recovery includes some form of non-monetary recovery with no precise or set value, it may be harder to determine how the lawyer's fee will be calculated and paid. Contingency fee agreements where a lawyer receives some percentage of the value of a nonmonetary asset, like property or intellectual property rights, have a greater potential to result in a lawyer's interests becoming adverse to those of the client. Accordingly, we conclude that such agreements fall within Bar Rule 4-1.8(a), such that the lawyer is required to ensure that the transaction is fully disclosed and fair to the client, and the client is given the opportunity to seek independent legal advice. Because Petersen admits he did not take such steps, we approve the referee's recommendation of guilt.

Bar Rules 4-3.3(a)(1), 4-8.4(c), and 3-4.3. The referee found that Petersen made material misrepresentations to a court, in violation of three Bar Rules. Bar Rule 4-3.3(a)(1) provides that a lawyer shall not knowingly make a false statement of fact or law to a tribunal; Bar Rule 4-8.4(c) states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; and Bar Rule 3-4.3 provides that the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may be cause for discipline.

These rule violations stem from Petersen's motion to withdraw in the Pool People case-the referee found that Petersen made material misrepresentations of fact in a proposed order that he submitted to the trial court, granting the motion. This finding is supported in the record. The Bar submitted a copy of the order, signed by the trial judge in June 2011. The order states that counsel for the defendant "has interposed no objection to the motion." In fact, Mr. Shalek testified before the referee that he did not have notice of Petersen's motion to withdraw, and thus he had no opportunity to raise an objection. Accordingly, the Court approves the referee's recommendation that Petersen be found guilty of violating these Bar Rules.

Bar Rules 4-4.1(a) and 4-4.4(a). The referee found Petersen guilty of violating Bar Rules 4-4.1(a) and 4-4.4(a). Rule 4-4.1(a) provides that a lawyer, in the course of representing a client, shall not knowingly make a false statement of material fact or law to a third person. Rule 4-4.4(a) states that a lawyer, in representing a client, may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

The referee found that Petersen fostered an adversarial relationship with the Gielchinskys to justify his decision to withdraw as their attorney and still preserve his right to collect what he anticipated would be a significant amount in attorney's fees. Evidence at the hearing established that Petersen created conflict with the Gielchinskys when it became apparent that the Vibo case would not result in a significant monetary judgment, and "he just decided he didn't want to deal with it anymore." A number of emails introduced at the hearing, exchanged between Petersen, Ms. Broder, and the Gielchinskys, included hostile language and threats, and demonstrate their strained relationship. Additionally, there is the February 2013 order issued by the federal magistrate in the Aldar case. In that case, the magistrate, like the referee here, heard testimony from Robert Gielchinsky, Ms. Broder, and Petersen, and concluded that Petersen manufactured conflicts. Therefore, we approve the referee's recommendation that Petersen be found guilty of violating Bar Rule 4-4.1(a) and 4-4.4(a).

Bar Rule 4-8. 4( d) . Bar Rule 4-8.4(d) provides that a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice. Petersen's failure to act competently and diligently in the Pool People case, resulting in its dismissal, his failure to communicate effectively with his clients, his misstatements of fact to a court, and his adversarial relationship with his clients in the Vibo case that resulted in additional litigation-support the referee's recommendation that Petersen's conduct was prejudicial to the administration of justice, in violation of this rule.

Bar Rule 4-8.4(g) . The referee found that Petersen failed to timely respond to an official inquiry from the Bar, in violation of Bar Rule 4-8.4(g). That rule provides that a lawyer shall not fail to respond, in writing, to any official inquiry by Bar counsel or to a disciplinary agency when Bar counsel or the agency is conducting an investigation into the lawyer's conduct. Petersen argues that the referee erred in finding a violation of this rule because he did prepare a response to the Bar's inquiry and submitted it to his counsel, though counsel never forwarded the response to the Bar. While Petersen submitted a copy of the response at the hearing before the referee he did not call any witnesses, in particular his attorney from that time, to verify the response. The referee heard Petersen's testimony on this issue and found that such testimony was not credible. Accordingly, we approve the recommendation that Petersen be found guilty of violating Bar Rule 4-8.4(g).

Bar Rules 3-4.2 and 4-8.4(a). Bar Rule 3-4.2 provides that violation of the Rules of Professional Conduct is cause for discipline. Bar Rule 4-8.4(a) provides in pertinent part that a lawyer shall not violate the Rules of Professional Conduct. Here, in violating Bar Rules 3-4.3, 4-1.1, 4-1.3, 4-1.4(a), 4-1.5(a), 4-1.8(a), 4-3.3(a)(1), 4-4.1(a), 4-4.4(a), and 4-8.4(c-d, g), Petersen violated Bar Rules 3-4.2 and 4-8.4(a).

Discipline

In reviewing a referee's recommendation as to discipline, the Court's scope of review is broader than that afforded to the referee's findings of fact, because it is ultimately the Court's responsibility to determine the appropriate discipline. Fla. Bar v. Anderson , 538 So.2d 852, 854 (Fla. 1989). In addition, the Court's decision to either accept or reject the recommended discipline depends upon whether there is 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). And significantly, the Court has moved towards imposing harsher sanctions. See Fla. Bar v. Rosenberg , 169 So.3d 1155, 1162 (Fla. 2015) ("[S]ince the decision in [ Fla. Bar v. ] Bloom [, 632 So.2d 1016 (Fla. 1994) ], the Court has moved toward imposing stronger sanctions for unethical and unprofessional conduct."); Fla. Bar v. Rotstein , 835 So.2d 241, 246 (Fla. 2002) ("In recent years, this Court has moved towards stronger sanctions for attorney misconduct.").

In determining the sanction to recommend, the referee considered the Standards that support imposition of a suspension, including 4.42 ("Suspension is appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or a lawyer engages in a pattern of neglect 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."), 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."). In addition, the referee found five aggravating factors, including Standards 9.22(a) (prior disciplinary history); 9.22(b) (dishonest or selfish motive); 9.22(c) (a pattern of misconduct); 9.22(d) (multiple offenses); and 9.22(i) (substantial experience in the practice of law), and one mitigating factor: 9.32(g) (character or reputation). Lastly, the referee considered cases where the Court imposed suspensions ranging in time between sixty days and three years. See, e.g. , Fla. Bar v. Rosenberg , 169 So.3d 1155 (Fla. 2015) ; Fla. Bar v. Adler , 126 So.3d 244, 247 (Fla. 2013) ; Fla. Bar v. Shankman , 41 So.3d 166 (Fla. 2010) ; Fla. Bar v. Head , 27 So.3d 1 (Fla. 2010) ; Fla. Bar v. Ticktin , 14 So.3d 928 (Fla. 2009) ; Fla. Bar v. Rotstein , 835 So.2d 241, 246 (Fla. 2002) ; Fla. Bar v. Maier , 784 So.2d 411 (Fla. 2001) ; Fla. Bar v. Norvell , 685 So.2d 1296 (Fla. 1996) ; Fla. Bar v. Barley , 541 So.2d 606 (Fla. 1989).

Contrary to the case law cited by the referee, existing case law supports imposition of more severe discipline. For example, in Florida Bar v. Herman , 8 So.3d 1100 (Fla. 2009), we imposed an eighteen-month suspension based upon the attorney's violation of Bar Rules 4-1.7(a) (prohibiting representation of a client if the representation will be directly adverse to the interests of another client, unless each client consents after consultation), 4-1.8(a) (prohibiting business transactions with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client), 4-8.4(a) (prohibiting violations or attempts to violate the Rules of Professional Conduct), and 4-8.4(c) (prohibiting engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Id. at 1103-04. The referee in Herman found four aggravating factors and one mitigating factor. Id. at 1104. The Court imposed a three-year suspension in Florida Bar v. Feige , 937 So.2d 605 (Fla. 2006), where the attorney had engaged in sixteen different rule violations involving serious deficiencies in his representation of numerous clients. Id. at 606-07. Similarly, in Florida Bar v. Provost , 323 So.2d 578 (Fla. 1975), the Court imposed a three-year suspension upon a lawyer who failed to properly represent and protect the interests of his clients. Id. at 578-79. In Florida Bar v. Shoureas , 892 So.2d 1002 (Fla. 2004), we rejected disbarment in favor of a three-year suspension for a lawyer who failed to act with reasonable diligence and to communicate with clients but did not have dishonest or selfish motive and was inexperienced in the practice of law. Id. at 1008-09.

Here, in light of the extensive rule violations by Petersen, the number of existing aggravating factors, the lack of mitigation except for the finding of good character, and relevant case law, Petersen is suspended from the practice of law for three years.

CONCLUSION

Accordingly, we approve the referee's report finding that Petersen violated the Bar Rules as set forth in the Bar's complaint.

However, we disapprove the referee's report pertaining to the recommendation of a ninety-one day suspension. Rather, Petersen is hereby suspended for three years. The suspension will be effective thirty days from the filing of this opinion so that Byron Gregory Petersen can close out his practice and protect the interests of existing clients. If Petersen 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. Petersen shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Petersen shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Byron Gregory Petersen, in the amount of $7,513.81, for which sum let execution issue.

It is so ordered.

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

      Petersen's motion for sanctions is discussed below, while his notices of supplemental authority pertaining to the rule violations are not.

      It appears this modification resulted from the dissolution of a personal and professional partnership between Petersen and another lawyer, Kim Hawthorne. There is an email in the record from June 2007 indicating that because of "Kim's malpractice while she worked on your cases and the ensuing derivative liability of P & H" the Gielchinskys and Petersen agreed that Petersen would accept a reduced ten percent contingency fee. Petersen's email advises the Gielchinskys to consult an independent attorney before signing the new agreement.


text:
    IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.205.
    No. SC18-992
    Supreme Court of Florida.
    [July 6, 2018]
   PER CURIAM.

This Court, on its own motion, amends Florida Rule of Judicial Administration 2.205(a)(1) (Internal Government; Exercise of Powers and Jurisdiction), as explained below. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(g)(1).

In In re Implementation of Judicial Branch Governance Study Group Recommendations-Amendments to Florida Rules of Judicial Administration , 121 So.3d 1, 1 (Fla. 2012), as part of the Court's goal to "strengthen the governance and policy development structures of the Florida judicial branch," this Court amended subdivision (a)(1)(A) of rule 2.205, as suggested by the Judicial Branch Governance Study Group, to expressly recognize that this Court establishes policy for the judicial branch. Consistent with the Court's policy-making authority, which includes establishing state budget and compensation priorities for the judicial branch, the Court also added subdivision (a)(1)(B) to rule 2.205 to prohibit any judge or supreme court created body, or any conference of judges from recommending to the legislative or executive branch state budget priorities, including compensation and benefits, that have not been approved by the Court. As originally adopted, subdivision (a)(1)(B) recognizes that this prohibition does not "apply to judges expressing their personal views who affirmatively make it explicitly clear that they are not speaking on behalf of the judicial branch."

The Court now amends subdivision (a)(1)(B) to further prohibit any judge or supreme court created body, or any conference of judges from recommending to "any legislative or executive branch entity" "any policy inconsistent with a policy position adopted by [this Court]." The Court also adds a sentence to that subdivision to make clear that "[n]o resources of any judicial branch entity may be used to facilitate or support the expression of [a judge's] personal views."

Accordingly, Florida Rule of Judicial Administration 2.205 is amended as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

Original Proceeding-Florida Rules of Judicial Administration

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

APPENDIX

RULE 2.205. THE SUPREME COURT
(a) Internal Government.
(1) Exercise of Powers and Jurisdiction.
(A) [No Change]
(B) Consistent with the authority of the supreme court to establish policy, including recommending state budget and compensation priorities for the judicial branch, no judge, supreme court created committee, commission, task force, or similar group, and no conference (Conference of District Court of Appeal Judges, Conference of Circuit Court Judges, Conference of County Court Judges) is permitted to recommend to any legislative or executive branch entity state budget priorities, including compensation and benefits, to the legislative or executive branch that have not been approved by the supreme court.,or any policy inconsistent with a policy position adopted by the supreme court. This subdivision is not intended to apply to judges expressing their personal views who affirmatively state that they are not speaking on behalf of the judicial branch. No resources of any judicial branch entity may be used to facilitate or support the expression of such personal views.
(C) [No Change]
(2)-(4) [No Change]
(b)-(g) [No Change]

      All comments must be filed with the Court on or before September 4, 2018, with a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal , Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court , Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


author: PARIENTE, J. POLSTON, J., dissenting.

text:
    Francisco RODRIGUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-805
    Supreme Court of Florida.
    [July 12, 2018]
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Michael Mervine, Acting Bureau Chief, and Nikole Hiciano, Assistant Attorney General, Miami, Florida, for Respondent
   PARIENTE, J.

We have for review the decision of the Third District Court of Appeal in Rodriguez v. State , 215 So.3d 194 (Fla. 3d DCA 2017), which expressly and directly conflicts with our decision in State v. Lee , 531 So.2d 133 (Fla. 1988), on the harmless error standard of review. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

In State v. DiGuilio , 491 So.2d 1129 (Fla. 1986), this Court set out the test to be applied in determining whether an error is harmless:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. at 1139.

In the conflict case, State v. Lee , this Court addressed the following question of great public importance:

DOES THE ERRONEOUS ADMISSION OF EVIDENCE OF COLLATERAL CRIMES REQUIRE REVERSAL OF APPELLANT'S CONVICTION WHERE THE ERROR HAS NOT RESULTED IN A MISCARRIAGE OF JUSTICE BUT THE STATE HAS FAILED TO DEMONSTRATE BEYOND A REASONABLE DOUBT THAT THERE IS NO REASONABLE POSSIBILITY THAT THE ERROR AFFECTED THE JURY VERDICT?

531 So.2d at 134. Answering the question in the affirmative, this Court declined to modify the DiGuilio test in favor of the "miscarriage of justice" test codified by the Legislature in section 59.041, Florida Statutes (2017). Lee , 531 So.2d at 136.

We have since reaffirmed this harmless error standard numerous times. See, e.g. , Ventura v. State , 29 So.3d 1086, 1088 (Fla. 2010) (holding that the Third District "improperly utilized an 'overwhelming evidence' test" when considering whether the error was harmless); Williams v. State , 863 So.2d 1189, 1190 (Fla. 2003) (quashing in part the Third District's decision because it determined that the error "did not deprive[ ] [defendant] of a fair trial" rather than considering whether the error was harmless under the standard set forth in DiGuilio ); Knowles v. State , 848 So.2d 1055, 1058-59 (Fla. 2003) ("[T]he DiGuilio standard remains the benchmark of harmless error analysis."); Goodwin v. State , 751 So.2d 537, 546 (Fla. 1999) ("[T]he DiGuilio standard of harmless error remains the applicable analysis to be employed in determining whether the error requires a reversal on direct appeal.").

In this case the Third District departed from the DiGuilio standard, concluding:

Any error by the trial court in admitting the hearsay statements at issue was, at best, harmless. See § 59.041, Fla. Stat. (2015) ("No judgment shall be set aside or reversed ... on the ground of ... the improper admission or rejection of evidence ... unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.")

Rodriguez , 215 So.3d at 195. Consistent with our precedent, we quash the Third District's decision in this case and remand for reconsideration under the correct harmless error standard. We decline to address the additional issue raised by Rodriguez that is beyond the scope of the conflict issue. See Williams , 863 So.2d at 1190.

It is so ordered.

LEWIS, QUINCE, and LABARGA, JJ., concur.

POLSTON, J., dissents with an opinion, in which CANADY, C.J., and LAWSON, J., concur.

POLSTON, J., dissenting.

The Third District's decision in its entirety states the following:

Any error by the trial court in admitting the hearsay statements at issue was, at best, harmless. See § 59.041, Fla. Stat. (2015) ("No judgment shall be set aside or reversed ... on the ground of ... the improper admission or rejection of evidence ... unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.").
Affirmed.

Rodriguez v. State , 215 So.3d 194, 195 (Fla. 3d DCA 2017).

Because there are insufficient facts and analysis in the Third District's decision, I would decline to exercise jurisdiction in this case. Therefore, I respectfully dissent.

CANADY, C.J., and LAWSON, J., concur.