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IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, CASE NO. SC11-1044 TFB NO.

2010-10,339(6A)

Complainant, v. DOUGLAS CLARK ZAHM, Respondent. ____________________________/ REFEREE'S REPORT RECOMMENDING DIVERSION TO ETHICS SCHOOL I. RECOMMENDATION: Pursuant to Rules Regulating The Florida Bar 35.3(h)(1), the referee adopts the parties conditional agreement for diversion to Ethics School, a copy of which is attached hereto and incorporated herein. II. PURPOSE AND PROGRAMS WHICH ARE RECOMMENDED: The purpose of the diversion is to assist Respondent in the future avoidance of the situations summarized below. Ethics School is recommended. III. NARRATIVE SUMMARY: Respondent is the managing partner in the Douglas C. Zahm, P.A. in Clearwater, Florida. Beginning in March 2008, the firm represented The CIT Group/Consumer Finance, Inc. in a foreclosure action against Deborah Higgins in Putnam County, Florida. Ms. Higgins was originally pro se in the proceedings and Nancy Hunt, an attorney at the firm, was the lead attorney on the case. On April 24, 2009, Ms. Hunt prepared and filed a Notice of Hearing for June 15, 2009 regarding Plaintiffs Motion for Summary Final Judgment of Foreclosure and Assessment of Attorneys Fees and Costs and Defendants Motion to Dismiss. The June 15, 2009 hearing was held before Judge Terry LaRue wherein the noticed topics were discussed. The hearing was attended by Carol Lawson, an attorney in the Zahm law firm. On July 10, 2009, Judge LaRue entered an order granting the Defendants Motion to Dismiss and providing the Plaintiff with leave to refile the
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complaint and attach the appropriate documents. The July 10, 2009 Order was received by the Zahm law firm on July 15, 2009. On July 15, 2009, the Zahm law firm, called Judge LaRues judicial assistant regarding Judge LaRues order and stated that the order contained errors because Ms. Higgins had not noticed her Motion to Dismiss. Following communications with Judge LaRues judicial assistant, Ms. Hunt prepared and filed a Notice of Hearing regarding Plaintiffs Motion for Summary Final Judgment of Foreclosure and Assessment of Attorneys Fees and Costs and Defendants Motion to Dismiss and Assessment of Attorneys Fees and Costs. Additionally, she prepared and filed a Notice of Filing in support of their Motion for summary judgment and filed a copy of the assignment of mortgage. Ms. Higgins received the pleadings and immediately contacted the Respondents firm to inform them that there were no pending motions and that the case had been dismissed pursuant to Judge LaRues previous order. Accordingly, Ms. Higgins requested that Respondents firm withdraw the filings. Respondents firm did not withdraw the pleadings pursuant to Ms. Higgins request. In fact, on July 24, 2009, Respondent, on behalf of Ms. Hunt, sent a letter to the judge requesting the court to vacate the order granting the Motion to Dismiss and reinstate the matter due to lack of notice of a hearing on the Motion to Dismiss. A copy of this letter was not sent to Ms. Higgins. The judge granted Respondents firms request and issued an Order Setting Aside the Order Granting the Motion to Dismiss and Setting the Matter for Hearing. When Ms. Higgins received a copy of the courts order, she realized she had never received a copy of the letter sent by the Respondent to the court. Thus, the court order was issued based on ex-parte communications. As such, Ms. Higgins filed a Motion for Recusal, which was granted by the judge. In the order, the judge explained his original actions and stated after another review of the file he realized that Respondents firm did indeed have proper notice of Ms. Higgins motion since the notice filed by Respondents firm referenced Ms. Higgins motion to dismiss. Accordingly, the judge noted that vacating the first order was a mistake, however, the court was powerless to correct the mistake due to granting the motion to recuse. After the issuance of the Order of Recusal, Respondent apologized to Judge LaRue for the events that took place leading up to the recusal by a letter that was sent to the court. In the letter, Respondent admitted that he signed the letter prepared by Ms. Hunt in haste, that he relied on his secretarys assurances that the content of the letter was accurate, that the firm did not send a copy of the letter to Ms.
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Higgins, and that the incident was a result of a breakdown in his office. IV. COSTS: Respondent shall pay the costs of this matter in the amount of: Administrative Costs: $1,250.00 Bar Counsel Expenses: $ 5.64 Court Reporter: $ 42.50 Total amount due: $1,298.14

V.

FEES: Ethics School - $750.00

Costs and Fees shall be due to The Florida Bar within 30 days from acceptance of this diversion recommendation. VI. ATTENDANCE: Respondent shall attend Ethics School within six (6) months of the date of the order approving the Referees Report incorporating this agreement. VII. EFFECT OF DIVERSION: Diversion to Ethics School shall close this file without the imposition of a disciplinary sanction and diversion shall not constitute a record of professional misconduct. If Respondent successfully completes the diversion recommended hereunder, this file shall remain closed. VIII. EFFECT OF FAILURE TO COMPLETE DIVERSION PROGRAM: Failure of Respondent to successfully complete all requirements of Ethics School to which Respondent is referred may: (a) (b) (c) (d) Constitute a waiver of the right to an evidentiary hearing herein; Authorize a duly-appointed referee to enter a finding of minor misconduct predicated upon the facts set forth in Section II above; Constitute a waiver of any right to reject or appeal the imposition of minor misconduct; and Require Respondent, upon reasonable notice, to appear before the board of governors for imposition of the admonishment of minor misconduct and payment of costs stated herein.

Such failure shall be considered as an aggravating factor when imposing a disciplinary sanction. IX. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD: In recommending approval of the parties conditional agreement for diversion to a practice and professionalism enhancement program, I considered the following
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personal history and prior disciplinary record of Respondent, to wit: Year of Birth: 1947 Date Admitted to Bar: October 18, 1973 The referee notes that Respondent is not certified in any area of practice and has no prior disciplinary history. The following Mitigating Factors are applicable in this matter: 9.32(a) absence of a prior disciplinary record; 9.32(b) absence of a dishonest or selfish motive; 9.32(e) full and free disclosure to disciplinary board; 9.32(g) character or reputation; 9.32(j) interim rehabilitation; and 9.32(l) remorse X. STANDARDS FOR IMPOSING LAWYER SANCTIONS AND CASE LAW CONSIDERED: Prior to recommending approval of the parties conditional agreement for diversion to Ethics School, I considered the following: 6.14 Admonishment is appropriate when a lawyer is negligent in determining whether submitted statements or documents are false or in failing to disclose material information upon learning of its falsity, and causes little or no actual or potential injury to a party, or causes little or no adverse or potentially adverse effect on the legal proceeding. 6.3 IMPROPER COMMUNICATIONS WITH INDIVIDUALS IN THE LEGAL SYSTEM 6.34 Admonishment is appropriate when a lawyer negligently engages in an improper communication with an individual in the legal system, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with the outcome of the legal proceeding. 7.0 VIOLATIONS OF OTHER DUTIES OWED AS A PROFESSIONAL 7.4 Admonishment is appropriate when a lawyer is negligent in determining whether the lawyer's conduct violates a duty owed as a professional, and causes little or no actual or potential injury to a client, the public, or the legal system.
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Florida Bar v. Germain, 957 So.2d 613 (Fla. 2007): The Florida Bar filed a complaint against Germain alleging that he violated several provisions of the Rules Regulating the Florida Bar. Specifically, Rule 4-3.1 (Meritorious claims and contentions), Rule 4-3.3(a)(1) (Making a false statement of material fact or law to a tribunal), Rule 4-3.4(c) (Knowingly disobeying an obligation under the rules of a tribunal), Rule 4-3.5(c) (Engaging in conduct intended to disrupt the tribunal), and Rule 4-8.4(d) (Engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice). The aforementioned conduct occurred in two separate cases, but was consolidated for trial purposes. The referee found in part that Germain filed a frivolous petition in one case; made inappropriate comments about the court and witnesses; misled a police investigation; and made false statements under oath. As a result, the referee recommended that Germain be suspended for ninety-one days. Germian appealed the ruling and the Supreme Court upheld the factual findings of the referee, but disagreed with the discipline. Germain had several aggravating factors that in the Courts opinion warranted a year suspension. The aggravating factors were a previous public reprimand for similar conduct, a pattern of misconduct, multiple offenses, and a refusal to acknowledge wrong doing. The Supreme Court also noted that it views cumulative misconduct more seriously than isolated instances. Florida Bar v. Von Zamft, 814 S0.2d 385 (Fla. 2002): The Florida Bar filed a complaint against Mr. Von Zamft alleging that Von Zamft had ex-parte communication with the presiding judge over a capital murder case, who was a friend of Von Zamft, for the purpose of advising the judge that granting the prosecutors pretrial motion for a continuance was in everyones best interest. In the complaint, the Bar alleged that Von Zamft violated Rule 4-3.5 (impartiality and decorum of the tribunal) and Rule 4-8.4(d) (Engaging in conduct that is prejudicial to the administration of justice) of the Rules Regulating the Florida Bar. The referee found that Von Zamft violated the aforementioned rules, but recommended an admonishment because of the respondents lack of prior discipline; good character; and public service to the Bar. The Supreme Court however, decided that a more appropriate discipline was a public reprimand. The Court held in part that a public reprimand is appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or
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interference or potential interference with the outcome of the legal proceeding. However, the Court did note that rule 3-5.1(a) provides that admonishments should be administered only when there has been a finding of minor misconduct an exparte communication with a judge which leads to that judges recusal is not minor misconduct, but is conduct which interferes with the outcome of a legal proceeding. Applying the Courts reasoning in Germain and VonZamft to Respondents case, a diversionary discipline is appropriate. Respondent has no prior disciplinary history. Furthermore, the letter that was sent to Judge LaRue was sent over at the request of the court. Additionally, there is no evidence that Respondent or any member of his firm intentionally made a misrepresentation to the court with the letter that was sent. Finally, the negligent acts committed by Respondent caused minimal injury to the complainant, Respondent is remorseful for his actions, and new procedures have been implemented at the firm to avoid such a negligent act from reoccurring. Accordingly, a diversionary discipline to Ethics School is appropriate. Dated this _____ day of _______________, 2011.

_________________________________ Honorable Eric R. Myers, Referee Copies To: Leonard Evans Clark, Bar Counsel, The Florida Bar, 4200 George J. Bean Pkwy., Suite 2580, Tampa, Florida 33607; Douglas Clark Zahm, Respondent, c/o Martin Errol Rice, P.O. Box 205, St. Petersburg, Florida 33731-0205; and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300.