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Florida Bar versus Criminal Lawyer Allan Campbell’s Fictitiousness

In the interim, Lawyer Allan Campbell is now working for Governor Ron DeSantis’s Florida Department of Children and Families.

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LIF COMMENTARY AND UPDATE (MAY 20, 2022)

A couple of tweets with the words Allan Campbell to Gov. Ron ‘The Unwanted Dictor’ Desantis and two week after publishing this article, the Fl. Supreme Court has suspended Campbell for 3 years, and as an aside, Fl. lawyer Christopher Lim for one year.

We’ll be commenting on the suspensions for Campbell and Lim as we release the other articles, which perhaps was why Florida acted swiftly. It’s certainly an improvement and at LIF we acknowledge that advancement.

However, as par for the course, y’all reverse on the good work by refusing to publish the suspension order on the Florida Bar member’s profile and claiming there is no disciplinary documents available – which is clearly a falsehood.

Supreme Court of Florida

THURSDAY, MAY 19, 2022

CASE NO.: SC21-1495
Lower Tribunal No(s).:
2019-30,317 (5B); 2019-30,392 (5B);
2019-30,608 (5B); 2019-30,726 (5B);
2020-30,084 (5B); 2020-30,781 (5B)

THE FLORIDA BAR vs. ALLAN CAMPBELL

Complainant(s)                                   Respondent(s)

The uncontested report of the referee is approved and respondent is suspended from the practice of law for three years, effective thirty days from the date of this order so that respondent can close out his practice and protect the interests of existing clients.

If respondent 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.

Respondent shall fully comply with Rule Regulating the Florida Bar 3-5.1(h).

Respondent shall also fully comply with Rule Regulating the Florida Bar 3-6.1, if applicable.

In addition, respondent shall accept no new business from the date this order is filed until he is reinstated.

Respondent is further directed to attend The Florida Bar’s Ethics School under the terms and conditions set forth in the report and consent judgment.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Allan Campbell in the amount of $11,105.46, for which sum let execution issue.

Not final until time expires to file motion for rehearing, and if filed, determined. The filing of a motion for rehearing shall not alter the effective date of this suspension.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.

A True Copy Test:

as Served:

PATRICK JOHN MCGINLEY LAURA N. GRYB
HON. ALICIA WASHINGTON, JUDGE PATRICIA ANN TORO SAVITZ

This is an evolving article, bookmark for updates as it forms part of a series of articles by LIF in a complex and lengthy scheme.

What is known is that if the courts had sentenced Roderic ‘Roddy’ Boling to the 25 years the Department of Justice suggest could have been applied, rather than a slap on the wrist of 60 months probation with 8 months in a halfway house, lawyer Allan Campbell would never have met Roddy Boling, a relationship which has wreaked havoc in Florida.

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant,

v.

ALLAN CAMPBELL,

Respondent.

Supreme Court Case No. SC-
The Florida Bar File Nos.

2019-30,317 (5B);
2019-30,392 (5B);
2019-30,726 (5B);
2020-30,084 (5B);
2019-30,608 (5B);
2020-30,781 (5B)

COMPLAINT

Oct 29, 2021

The Florida Bar, complainant, files this Complaint against Allan Campbell, respondent, pursuant to the Rules Regulating The Florida Bar and alleges:

THE CAST OF KEY PLAYERS

LAWYERS

ALLAN CAMPBELL, [FORMALLY CHARGED]

ANDREA ROEBUCK [SUSPENDED WITH CONDITIONS]

[ADMONISHED] R. CHRISTOPHER A. LIM [ HAS SELF-DESTRUCTIVE TENDENCIES]

STAFFORD SHEALY [PERMANENTLY RETIRED]

KELLEY BOSECKER [PERMANENTLY DISBARRED ATTORNEY]

DANIEL BRODERSON [DISCIPLINARY REVOCATION]

KATHLEEN ACHILLE

PATRICK THOMPSON [PUBLIC REPRIMAND]

NON-LAWYERS

WILLIAM PICKARD,

RODDY BOLING – ANNA BOLING – KATIE BOLING

WILLIAM HOWELL

DARRIN LAVINE – LINA OLARTE-LAVINE

AND

KEY ENTITIES

ALLAN CAMPBELL ATTORNEY AT LAW LLC FICTITIOUSLY TRADING AS ‘BEST DEFENSE LAW’ [CAMPBELL],

BEST DEFENSE LAW, P.A. [ROEBUCK]

ORLANDO VENTURES [HOWELL],

TITANS RESERVE GROUP PMA [LAVINE],

THE RESILIENT GROUP INC., OTHERWISE KNOWN AS RESILIENT GROUP PMA. [BOLING]

TIMESHARE LAWYERS INC. / TIMESHARE LAWYERS, P.A.

CAMPBELL'S LOGO

“The Key to Your Criminal Defense”

1. Respondent is and was at all times mentioned herein a member of The Florida Bar, admitted on September 21, 1990, and is subject to the jurisdiction of the Supreme Court of Florida.

2. Respondent resided in Seminole County, Florida, and practiced law in Orange and Seminole Counties, Florida, at all times material.

3. The Fifth Judicial Circuit Grievance Committee “B” found probable cause to file this complaint pursuant to Rule 3-7.4, of the Rules Regulating The Florida Bar, and this complaint has been approved by the presiding member of that committee.

GENERAL ALLEGATIONS

4. In January 2017, respondent created a Florida business entity named Allan Campbell Attorney at Law LLC.

The entity was registered to do business in the State of Florida under the fictitious name of Best Defense Law.

5. Respondent was a sole practitioner and wanted to set up a law office with his associate, William Glenn Pickard, a nonlawyer, to expand his practice.

6. Respondent agreed that one of Pickard’s responsibilities as office manager of Best Defense Law was to bring in business for the firm.

7. Pickard introduced respondent to Roderic Boling, a nonlawyer, who wanted to be a silent investor in Best Defense Law.

8. Boling provided office space to Best Defense Law in the same building where Boling maintained an office.

9. Boling was associated with William Howell, a nonlawyer who owned Orlando Ventures and several other affiliated businesses that were involved in timeshare divestment.

10. Boling and Howell provided financial assistance to get Best Defense Law’s office up and running.

11. Howell’s businesses solicited timeshare owners to hire his businesses to divest their timeshare interests.

12. Howell also purchased timeshare divestment cases from other timeshare exit companies, acquiring those contracts without the clients’ knowledge or consent.

13. Howell and Boling approached respondent about taking over their timeshare divestment cases, and respondent accepted.

14. Howell was seeking a new law firm to handle the matters after having severed his relationship with Timeshare Lawyers, Inc/Timeshare Lawyers, P.A.

15. Respondent had the timeshare clients execute limited powers of attorney authorizing respondent to negotiate on behalf of the clients with the respective time share resorts or time share companies.

16. None of Howell’s timeshare divestment companies were registered lawyer referral services in accordance with the Rules Regulating The Florida Bar.

17. Respondent delegated virtually all of the work on the timeshare cases to case managers, who were nonlawyers, and exercised no meaningful supervision over them.

18. Howell and/or Boling provided the case managers to handle the timeshare divestment work and exercised ultimate control over them.

19. Respondent admitted that he did not talk to all of the timeshare customers.

20. The case managers negotiated with the timeshare resorts, usually by letter or phone.

21. The case managers used form letters and affixed respondent’s signature with a stamp, with respondent’s knowledge and consent.

22. The timeshare owners and resorts were located nationwide, and, in some instances, resorts were located in foreign countries.

23. Respondent became aware that Howell had sent out solicitations using his name and Best Defense Law without his knowledge.

24. Respondent also learned that at least some of the timeshare clients had paid more money to Howell’s businesses than respondent was being paid to work on their cases.

25. Respondent was paid $500.00 per timeshare case by Howell and/or Boling and became aware that at least one timeshare customer paid Howell’s business $2,400.00.

26. In late 2017, respondent confronted Howell about the misleading direct solicitation and his concerns about fee sharing.

27. However, respondent continued to work for Howell and/or Boling representing the timeshare cases that they had until approximately March 2018.

28. In late 2017, Howell and Boling again came to respondent to start doing foreclosure defense and bankruptcy cases.

29. Respondent testified that he made it clear he was not comfortable doing foreclosure defense cases but that he wanted to learn bankruptcy.

30. They all agreed that they would bring on two attorneys, Andrea Roebuck and R. Christopher A. Lim, to do the foreclosure defense cases.

31. Roebuck and Lim were given office space in the same building as Best Defense Law and where Boling maintained an office.

32. At the time they associated with Best Defense Law in or around November 2017, Roebuck and Lim were handling foreclosure defense cases for a private member association, Titans Reserve Group PMA, operated by Darrin Lavine, a nonlawyer.

33. Around the time that Roebuck and Lim associated with Best Defense Law, Lavine ceased operations of Titans Reserve Group PMA and became involved with The Resilient Group Inc., often referred to as Resilient Group PMA, a corporation in which Boling served as President of Trustees.

34. Lavine referred members of Titans Reserve Group PMA to Resilient Group.

35. Best Defense Law took foreclosure defense cases from members of Resilient Group.

36. Resilient Group was a private member association that focused on defending foreclosure cases by claiming the mortgage notes were fraudulent.

37. Resilient Group purported to have a scientific process of examining notes to determine whether they were original or re-created.

38. Resilient Group offered its members pro se support, such as motions and legal research.

39. The website refers to its experienced team of foreclosure lawyers.

40. Resilient Group accepted payments from its members for legal services and utilized Best Defense Law to provide those services.

Members were not permitted to choose which attorney represented them.

41. Members paid Resilient Group an initial fee of $1,000.00 per property and $600.00 per month per property until the foreclosure case was completed.

42. Neither Resilient Group PMA nor The Resilient Group, Inc., were registered lawyer referral services in accordance with the Rules Regulating The Florida Bar.

43. When Roebuck and Lim began working with Best Defense Law, it was decided that all cases would be filed with the courts using respondent’s name and e-filing credentials.

44. Respondent’s password for both state and federal court e-portal filing systems were available to office staff to allow office staff to file documents on his behalf.

45. In foreclosure cases, after respondent filed his notice of appearance or other document in a case, Lim and/or Roebuck would handle the case going forward.

46. Further, it was agreed that Lim would assist respondent in becoming competent to handle bankruptcy cases.

47. Because respondent continued his full-time [criminal] court-appointed work he was not present in the office of Best Defense Law on a daily basis.

48. Respondent delegated all handling of the law firm’s finances to Pickard without exercising meaningful supervision and relied on Pickard to handle all agreements with Boling regarding the loan that Boling made to fund Best Defense Law.

For instance, respondent was not completely aware of who he was paying as employees of the firm or whether Best Defense Law was repaying the initial loan it received from Boling.

49. Respondent also relied heavily on Pickard for the day-to-day operations of the firm, including to bring pleadings to be filed to respondent’s attention.

50. In December 2017, Pickard abruptly left Best Defense Law after a confrontation with Boling.

51. Boling exercised considerable influence over the operation of Best Defense Law prior to Pickard’s departure.

52. Boling exerted increasing control over the operations and employees of Best Defense Law and respondent after Pickard’s departure.

53. After Pickard’s departure, Boling installed a new office manager Danny Johnson, who reported to Boling rather than to respondent.

54. Boling then offered respondent a salary increase as an incentive to prevent respondent’s departure from Best Defense Law.

55. Respondent testified that due to his discomfort with the increasingly hostile work environment, he spent less time at the Best Defense Law office, further exacerbating the issue with a nonlawyer controlling and directing a law firm without any supervision.

56. The employees of Best Defense Law, including the case managers and paralegals, took direction from Boling rather than from respondent.

57. The manner in which cases were managed provided Boling with access to attorney-client privileged information.

58. Boling routinely was included in law firm meetings where client matters were discussed, including attorney-client privileged information.

59. Boling routinely reviewed respondent’s letters, discarding them if the language was not to Boling’s liking, and directed the staff to send out a new version of the letters that Boling authored under respondent’s name.

60. Respondent testified that he was told by staff that if clients complained about the quality of their legal representation, Boling handled those communications and advised those clients that respondent had 30 years of legal experience.

61. Respondent testified that he discovered in late 2017 that some foreclosure filings were made under his name and with his filing credentials without his prior knowledge or consent.

62. Respondent further testified that he confronted Roebuck and Lim about the unauthorized filings and directed them to cease using his e- filing credentials for the foreclosure cases.

63. Respondent acknowledged that he had no proof that either Roebuck or Lim were responsible for the filings rather than the nonlawyer staff who also had access to respondent’s e-filing credentials.

64. The calendar and tickler system for Best Defense Law was created by Roebuck to automatically notify the nonlawyer staff of filing deadlines.

65. The staff routinely drafted and filed documents using respondent’s signature and filing credentials without supervision.

66. In or around March 2018, after a confrontation with Boling over respondent’s growing concern about the manner in which Best Defense Law was being operated, Boling banned respondent from re-entering the office of Best Defense Law and told respondent he was changing the locks.

67. With respondent’s abrupt departure, Boling assumed virtually all control over the operations of respondent’s law firm.

68. Due to concerns that respondent might leave Best Defense Law, Roebuck incorporated the similarly named law firm of Best Defense Law, P.A. on December 28, 2017.

69. The name of the new law firm was dictated by Boling, who desired that the clients not become aware of the change in the law firm.

70. Best Defense Law, P. A., became operational after respondent’s departure.

71. Because respondent’s name was on pleadings in some of the foreclosure defense and bankruptcy cases, respondent continued receiving copies of filings from the court in those cases after he left Best Defense Law.

72. If respondent perceived that the foreclosure cases were being actively litigated, respondent took no action to withdraw and permitted the court records to reflect him as counsel of record.

73. In cases where respondent perceived that Roebuck and/or Lim were not engaged with the clients or that the case was not being actively litigated, respondent filed a motion to withdraw and noticed the clients.

74. However, respondent did not set his motions for hearing or take the necessary steps to ensure he had been removed from the cases.

75. On the occasions when respondent was contacted by opposing counsel in a foreclosure case, respondent directed the attorney to Roebuck or Lim.

76. In one instance, opposing counsel refused to contact Roebuck because respondent was the attorney of record and informed respondent that she was seeking sanctions for having to defend a frivolous matter.

77. In response, respondent filed a dismissal instead of a motion seeking permission to withdraw from the case without consulting with the client prior to filing the motion for dismissal.

78. On March 29, 2018, respondent filed for an emergency injunction against Best Defense Law, of which he was the sole owner, officer, manager, and attorney of record, to stop the day-to day operations until he could bring all actions under his direct control.

79. The motion was denied on April 4, 2018, and a notice of lack of prosecution was entered in the case on February 21, 2019.

80. Respondent’s lack of control over his law firm enabled Boling and Howell to use Best Defense Law to achieve their own business objectives, all of which, if engaged in by an attorney, would be a violation of the Rules Regulating The Florida Bar.

THE FLORIDA BAR FILE NO. 2019-30,317 (5B)

The Florida Bar re-alleges paragraphs 4 through 80 as if set forth fully herein and further alleges:

81. Beginning in or around August 2016, Thousand Hills Golf Resort, located in Missouri, began receiving letters from attorney Patrick Thompson of Timeshare Lawyers regarding Donald and Margaret Donovan, who allegedly owned a timeshare at the resort.

82. Daniel C. Ruda, president of Thousand Hills Golf Resort, notified Thompson repeatedly that Thompson was addressing the wrong entity as the resort did not engage in the timeshare business and the Donovans did not own a unit at this resort. Thompson failed to correct the misidentification issue, resulting in Ruda issuing a cease a desist letter to Timeshare Lawyers.

83. After Howell transferred the Donovan case to respondent’s Best Defense Law, respondent wrote to Thousand Hills Golf Resort on January 15, 2018, reasserting the same allegations on behalf of the same clients that were previously proclaimed by Thompson in 2016.

84. Then in May 2018, a letter was sent to Thousand Hills Golf Resort with Roebuck’s signature on it, stating that Best Defense has been unable to successfully attain the resort’s cooperation on behalf of the Donovans and their alleged timeshare.

85. Ruda repeatedly advised each of the ensuing attorneys by telephone, postal letter, fax, and email that Thousand Hills Golf Resort was a whole-ownership resort with no timeshare option available and had no connection with the Donovans.

86. In June 2018, Ruda wrote a letter to respondent to cease and desist from contacting the resort to avoid legal action against Best Defense Law, the Donovans, and all others associated with this claim.

87. Ruda again advised that more accurate research by respondent’s office should be conducted and that this could be considered as defamation of his company name.

88. At the time of the June 2018 letter from Ruda, respondent had left Best Defense Law, without notice, and Andrea Marie Roebuck had assumed responsibility for the timeshare cases. Ruda was not provided with notice of the change in attorneys or law firms.

89. Despite Ruda’s June 2018 letter, other attorneys associated with Howell, who handled the timeshare cases after respondent’s departure, continued sending correspondence to the resort on behalf of the non-existent owners demanding relief.

90. Respondent’s lack of supervision of his case managers resulted in respondent not being made aware of the Donovans’ competence, understanding or their wishes as to the legal services being provided, including disclosure of their health conditions.

91. The Donovans’ timeshare divestment case was purchased by Howell’s company and eventually assigned to Best Defense Law years after the Donovans started the timeshare divestment process.

92. Respondent was not aware of Ruda’s cease and desist letters.

93. Respondent never communicated with the Donovans and was not aware of their existence as his clients.

94. Because respondent had no communication with the Donovans, he was not aware whether they still required divestment services, whether they were competent, whether the information provided was accurate, or whether they were still alive, given that his letter indicated that they were experiencing life-threatening medical issues.

95. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar:

(a) 3-4.3 (1993) The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

(b) 3-4.3 (2018) The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer’s relations as a lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether the act is a felony or a misdemeanor.

(c) 4-1.1 A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

(d) 4-1.4 (a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(e) 4-1.5(a) (2012, 2018) An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar.

(f) 4-1.6(a) A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

(g) 4-1.6(e) A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

(h) 4-1.8(f) (2010) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

(i) 4-1.8(f) (2018) A lawyer is prohibited from accepting compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client- lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

(j) 4-5.3 (a) A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.

(k) 4-5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4- 1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter.

(l) 4-5.4(c) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(m) 4-5.4(d) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

(n) 4-5.4(e) A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

(o) 4-5.5(a) A lawyer may not practice law in a jurisdiction other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so.

(p) 4-5.7 (a) A lawyer who provides nonlegal services to a recipient that are not distinct from legal services provided to that recipient is subject to the Rules Regulating The Florida Bar with respect to the provision of both legal and nonlegal services. (b) A lawyer who provides nonlegal services to a recipient that are distinct from any legal services provided to the recipient is subject to the Rules Regulating The Florida Bar with respect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship. (c) A lawyer who is an owner, controlling party, employee, agent, or otherwise is affiliated with an entity providing nonlegal services to a recipient is subject to the Rules Regulating The Florida Bar with respect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship that the recipient is receiving the protection of a client-lawyer relationship.

(q) 4-7.18(a) (2013) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4–7.11 through 4–7.17 of these rules.
(2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

(r) 4-7.18(a) (2018) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit in person, or permit employees or agents of the lawyer to solicit in person on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, by electronic means that include realtime communication face-to-face such as video telephone or video conference, or by other communication directed to a specific recipient that does not meet the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

(s) 4-7.22 (2013) (a) A lawyer may not accept referrals from a lawyer referral service, and it is a violation of these Rules Regulating the Florida Bar to do so, unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer; (2) receives no fee or charge that constitutes a division or sharing of fees, unless the service is a not-for-profit service approved by The Florida Bar pursuant to chapter 8 of these rules; (3) refers clients only to persons lawfully permitted to practice law in Florida when the services to be rendered constitute the practice of law in Florida; (4) carries or requires each lawyer participating in the service to carry professional liability insurance in an amount not less than $100,000 per claim or occurrence; (5) furnishes The Florida Bar, on a quarterly basis, with the names and Florida bar membership numbers of all lawyers participating in the service; (6) furnishes The Florida Bar, on a quarterly basis, with the names of all persons authorized to act on behalf of the service; (7) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the service or a lawyer who accepts referrals from the service; (8) neither represents nor implies to the public that the service is endorsed or approved by The Florida Bar, unless the service is subject to chapter 8 of these rules; (9) uses its actual legal name or a registered fictitious name in all communications with the public; (10) affirmatively states in all advertisements that it is a lawyer referral service; and (11) affirmatively states in all advertisements that lawyers who accept referrals from it pay to participate in the lawyer referral service. (b) A lawyer who accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements or written communications used by the service comply with the requirements of the Rules Regulating the Florida Bar, including the provisions of this subchapter. (c) A “lawyer referral service” is: (1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or (2) any group or pooled advertising program operated by any person,group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program. A pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration, is not a lawyer referral service within the definition of this rule.

(t) 4-8.4(a) A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

(u) 4-8.4(c) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(v) 4-8.6(b) No authorized business entity may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.

(w) 4-8.6(c) No person may serve as a partner, manager, director or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state. For purposes of this rule the term “executive officer” includes the president, vice-president, or any other officer who performs a policy-making function.

(x) 4-8.6(d) A lawyer who, while acting as a shareholder, member, officer, director, partner, proprietor, manager, agent, or employee of an authorized business entity and engaged in the practice of law in Florida, violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Bar will be subject to disciplinary action.

THE FLORIDA BAR FILE NO. 2019-30,392 (5B)

The Florida Bar re-alleges paragraphs 4 through 80 as if set forth fully herein and further alleges:

96. On or about May 31, 2017, Joseph L. Cobb and his wife, residents of Louisiana, entered into a contract with respondent and Best Defense Law to provide legal services with respect to divesting the Cobbs’ interest in a Wyndham Resorts timeshare property located in Florida.

The Cobbs also executed a Limited and Specific Power of Attorney with respondent.

The contract stated that Timeshare Lawyer Services was paying all fees on behalf of the Cobbs.

97. In support of their hardship claim, the Cobbs provided respondent with confidential medical information.

98. Respondent permitted a situation to exist whereby the Cobbs’ confidential health information was available to third parties.

99. Cobb paid $2,400.00 for this service.

100. Best Defense Law wrote only one letter to Wyndham Resorts during a twenty-month period.

101. Virtually all communication from Best Defense Law was from nonlawyers over whom respondent exercised little meaningful supervision.

102. By November 2018, it appeared to the Cobbs that Best Defense Law had ceased operations and no refund of the unearned fees could be obtained.

103. According to respondent, the fee paid by the Cobbs was not made to him or Best Defense Law, but rather to a third-party timeshare exit company that referred timeshare owners to Best Defense Law.

104. Best Defense Law was paid a flat fee for each referral.

105. Respondent left Best Defense Law in March 2018.

106. Respondent explained that the client files remain the property of the various third parties who made the referrals to Best Defense Law. As a result, respondent had no access to the Cobbs’ file.

107. By reason of the forgoing, respondent has violated the following Rules Regulating The Florida Bar:

a. 3-4.3 (1993) The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

b. 3-4.3 (2018) The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer’s relations as a lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether the act is a felony or a misdemeanor.

c. 4-1.1 A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

d. 4-1.4 (a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

e. 4-1.5(a) (2012, 2018) An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar.

f. 4-1.6(a) A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

g. 4-1.6(e) A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

h. 4-1.8(f) (2010) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

i. 4-1.8(f) (2018) A lawyer is prohibited from accepting compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client- lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

j. 4-5.3 (a) A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.

k. 4-5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4- 1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter.

l. 4-5.4(c) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

m. 4-5.4(d) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

n. 4-5.4(e) A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

o. 4-5.5(a) A lawyer may not practice law in a jurisdiction other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so.

p. 4-5.7 (a) A lawyer who provides nonlegal services to a recipient that are not distinct from legal services provided to that recipient is subject to the Rules Regulating The Florida Bar with respect to the provision of both legal and nonlegal services. (b) A lawyer who provides nonlegal services to a recipient that are distinct from any legal services provided to the recipient is subject to the Rules Regulating The Florida Bar with respect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship. (c) A lawyer who is an owner, controlling party, employee, agent, or otherwise is affiliated with an entity providing nonlegal services to a recipient is subject to the Rules Regulating The Florida Bar with respect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship.

q. 4-7.18(a) (2013) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4–7.11 through 4–7.17 of these rules.
(2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

r. 4-7.18(a) (2018) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit in person, or permit employees or agents of the lawyer to solicit in person on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, by electronic means that include realtime communication face-to-face such as video telephone or video conference, or by other communication directed to a specific recipient that does not meet the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

s. 4-7.22 (2013) (a) A lawyer may not accept referrals from a lawyer referral service, and it is a violation of these Rules Regulating the Florida Bar to do so, unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer; (2) receives no fee or charge that constitutes a division or sharing of fees, unless the service is a not-for-profit service approved by The Florida Bar pursuant to chapter 8 of these rules; (3) refers clients only to persons lawfully permitted to practice law in Florida when the services to be rendered constitute the practice of law in Florida; (4) carries or requires each lawyer participating in the service to carry professional liability insurance in an amount not less than $100,000 per claim or occurrence; (5) furnishes The Florida Bar, on a quarterly basis, with the names and Florida bar membership numbers of all lawyers participating in the service; (6) furnishes The Florida Bar, on a quarterly basis, with the names of all persons authorized to act on behalf of the service; (7) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the service or a lawyer who accepts referrals from the service; (8) neither represents nor implies to the public that the service is endorsed or approved by The Florida Bar, unless the service is subject to chapter 8 of these rules; (9) uses its actual legal name or a registered fictitious name in all communications with the public; (10) affirmatively states in all advertisements that it is a lawyer referral service; and (11) affirmatively states in all advertisements that lawyers who accept referrals from it pay to participate in the lawyer referral service. (b) A lawyer who accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements or written communications used by the service comply with the requirements of the Rules Regulating the Florida Bar, including the provisions of this subchapter. (c) A “lawyer referral service” is: (1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or (2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program. A pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration, is not a lawyer referral service within the definition of this rule.

t. 4-8.4(a) A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

u. 4-8.4(c) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

v. 4-8.6(b) No authorized business entity may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.

w. 4-8.6(c) No person may serve as a partner, manager, director or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state. For purposes of this rule the term “executive officer” includes the president, vice-president, or any other officer who performs a policy-making function.

x. 4-8.6(d) A lawyer who, while acting as a shareholder, member, officer, director, partner, proprietor, manager, agent, or employee of an authorized business entity and engaged in the practice of law in Florida, violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Bar will be subject to disciplinary action.

THE FLORIDA BAR FILE NO. 2019-30,608 (5B)

The Florida Bar re-alleges paragraphs 4 through 80 as if set forth fully herein and further alleges:

108. Joseph and Jodell Altier were members of Resilient Group PMA.

109. The Altiers had foreclosure and bankruptcy cases.

110. In Jodell Altier v. Goshen Mortgage, LLC, Case Number 6:18- cv-00438-JA, Jodell Altier sought an appeal of an order entered by the bankruptcy court in the United States District Court, Middle District of Florida.

111. The notice of appeal was filed on March 7, 2018, using respondent’s e-filing credentials and his signature was affixed to the pleading.

112. The notice of appeal was filed around the time that respondent’s association with Boling ended and he left Best Defense Law.

113. On or about July 7, 2018, Jodell Altier filed a pro se response to a motion to dismiss and motion for additional time to file an appeal prepared by Kelley Andrea Bosecker, a disbarred attorney, associated with Lavine, Roebuck, and Lim.

114. Goshen Mortgage, LLC filed a response in opposition stating that respondent did not know or represent Jodell Altier based on a telephone call opposing counsel received from respondent.

115. On September 7, 2018, the court held a status conference hearing in the matter. Roebuck appeared as counsel for Jodell Altier after being contacted by either Boling and/or Lavine.

116. When the issue was raised in court that respondent was not Jodell Altier’s attorney and that the notice of appeal may have been fraudulently filed in his name, the court ordered an evidentiary hearing in an attempt to discover the truth of the matter.

117. In addition, the parties conducted discovery and held depositions on the matter.

118. On January 8, 2019, Roebuck and attorney Stafford Shealy appeared at the evidentiary hearing on behalf of Jodell Altier.

119. At the evidentiary hearing, respondent testified that he knew Roebuck and Lim had used both his state and federal court e-filing logins without his permission to file pleadings in his name.

120. Later, during respondent’s sworn statement taken in connection with this disciplinary matter, respondent testified that he did not know whether Roebuck or Lim filed pleadings in his name, explaining that he was upset about what was happening when he testified during the hearing in Jodell Altier’s case in federal court.

121. During his sworn statement, respondent testified that he did not know how the unauthorized filing occurred in Jodell Altier’s case and, therefore, he did not report either Roebuck or Lim to the Bar.

122. Respondent also later testified that there had been an agreement, at least in the beginning, that all Best Defense cases would be filed in his name.

123. Respondent further acknowledged that office staff had access to his login credentials for both state and federal court.

124. Although respondent was aware by the time that the notice of appeal was filed on behalf of Jodell Altier that his filing credentials were being used by staff in filing documents with state court, respondent did not change his password for the United States District Court, Middle District of Florida e-filing system.

125. Respondent permitted a situation to exist whereby his federal court e-filing credentials and login information were used by others to file documents in Jodell Altier’s case without his knowledge or approval.

126. It was established at the January 8, 2019, evidentiary hearing in Jodell Altier’s case that Lim met with respondent after a bankruptcy hearing for Jodell Altier in February 2018 to discuss whether Altier should appeal the bankruptcy court’s decision.

127. Respondent could not explain why Lim met with him after the hearing other than to say that they worked in the same office.

128. Respondent denied sending Lim to cover the Altier bankruptcy hearing.

129. The deadline for filing the appeal in Jodell Altier’s case was calendared by Best Defense Law staff who Roebuck, Lim and respondent shared.

130. One of the issues being considered in allowing Jodell Altier to file a belated appellate brief was whether she missed the deadline because she did not have adequate legal representation in this matter. The court was unable to discern who filed the notice of appeal using respondent’s credentials.

131. At the January 8, 2019, hearing, the court ultimately granted Jodell Altier an extension of time to file an appellate brief with the judge stating: “I think under these circumstances I have to give a layperson who’s dealing with the lawyers in this case the benefit of the doubt.”

132. During the January 8, 2019, evidentiary hearing, it also came to light that Bosecker, a disbarred attorney, had drafted documents for Jodell Altier to file pro se in the matter at a time when Bosecker was suspended but not yet disbarred.

133. Jodell Altier testified that Bosecker called her after Jodell Altier missed the deadline and offered to file something to prevent dismissal of her case.

134. Both of the Altiers testified that they believed respondent ultimately was responsible for the legal representation because it was his name that appeared on all of the pleadings filed in Jodell Altier’s bankruptcy appeal case.

135. Both of the Altiers testified that they relied on Resilient Group to provide them with competent legal services.

136. Furthermore, Daniel Newton Brodersen, who gave up his right to practice law in 2017, sent Joseph Altier a copy of the membership agreement for Resilient Group from an email address associated with Best Defense Law.

137. In this email, sent in February 2018, Brodersen stated: “Remember, those PMA fees contemplate our lawyers, as well as Roddy [Boling] and I, doing a great deal of work on the bankruptcy appeal, which is not normally something that the PMA deals with.”

138. Both Joseph Altier and Brodersen signed the agreement for Resilient Group.

139. Respondent testified during his sworn statement taken in connection with these disciplinary proceedings that he was concerned about Brodersen being a “disbarred” attorney who was drafting pleadings and suggesting courses of legal actions.

140. On January 23, 2019, Jodell Altier filed Appellant’s Opening Brief pro se. A conference hearing was set for February 4, 2019. During the hearing, it came to light that an unknown nonlawyer at Resilient Group helped Jodell Altier draft the brief.

141. Jodell Altier testified that there was no attorney involved and that she believed a secretary or paralegal helped her.

142. Although respondent was aware of the multiple allegations of professional misconduct in connection with the Altier case, Resilient Group and Best Defense Law, respondent did not report the attorneys and the former attorneys involved to The Florida Bar.

143. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar:

a. 3-4.3 (1993) The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

b. 3-4.3 (2018) The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer’s relations as a lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether the act is a felony or a misdemeanor.

c. 4-1.1 A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

d. 4-1.4(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

e. 4-1.5(a) A lawyer must not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar.

f. 4-1.6(a) A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

g. 4-1.6(e) A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

h. 4-1.8(f) (2010) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

i. 4-1.8(f) (2018) A lawyer is prohibited from accepting compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client- lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

j. 4-1.16(a)(1) Except as stated in subdivision (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or law.

k. 4-3.3(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

l. 4-3.4(c) A lawyer must not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

m. 4-5.1 (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers therein conform to the Rules of Professional Conduct. (b) Any lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

n. 4-5.3 (a) A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.

o. 4-5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4- 1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter.

p. 4-5.4(c) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

q. 4-5.4(d) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

r. 4-5.4(e) A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

s. 4-7.18(a) (2013) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4–7.11 through 4–7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

t. 4-7.18(a) (2018) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit in person, or permit employees or agents of the lawyer to solicit in person on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, by electronic means that include realtime communication face-to-face such as video telephone or video conference, or by other communication directed to a specific recipient that does not meet the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

u. 4-7.21(f) A name, letterhead, business card or advertisement may not imply that lawyers practice in a partnership or authorized business entity when they do not.

v. 4-7.22 (2013) (a) A lawyer may not accept referrals from a lawyer referral service, and it is a violation of these Rules Regulating the Florida Bar to do so, unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer; (2) receives no fee or charge that constitutes a division or sharing of fees, unless the service is a not-for-profit service approved by The Florida Bar pursuant to chapter 8 of these rules; (3) refers clients only to persons lawfully permitted to practice law in Florida when the services to be rendered constitute the practice of law in Florida; (4) carries or requires each lawyer participating in the service to carry professional liability insurance in an amount not less than $100,000 per claim or occurrence; (5) furnishes The Florida Bar, on a quarterly basis, with the names and Florida bar membership numbers of all lawyers participating in the service; (6) furnishes The Florida Bar, on a quarterly basis, with the names of all persons authorized to act on behalf of the service; (7) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the service or a lawyer who accepts referrals from the service; (8) neither represents nor implies to the public that the service is endorsed or approved by The Florida Bar, unless the service is subject to chapter 8 of these rules; (9) uses its actual legal name or a registered fictitious name in all communications with the public; (10) affirmatively states in all advertisements that it is a lawyer referral service; and (11) affirmatively states in all advertisements that lawyers who accept referrals from it pay to participate in the lawyer referral service. (b) A lawyer who accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements or written communications used by the service comply with the requirements of the Rules Regulating the Florida Bar, including the provisions of this subchapter. (c) A “lawyer referral service” is: (1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or (2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program. A pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration, is not a lawyer referral service within the definition of this rule.

w. 4-8.3(a) (2006, 2012, 2018) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.

x. 4-8.3(a) (2019) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.

y. 4-8.4(a) A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

z. 4-8.4(c) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

aa. 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.

bb. 4-8.6(b) No authorized business entity may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.

cc. 4-8.6(c) No person may serve as a partner, manager, director or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state. For purposes of this rule the term “executive officer” includes the president, vice-president, or any other officer who performs a policy-making function.

dd. 4-8.6(d) A lawyer who, while acting as a shareholder, member, officer, director, partner, proprietor, manager, agent, or employee of an authorized business entity and engaged in the practice of law in Florida, violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Bar will be subject to disciplinary action.

THE FLORIDA BAR FILE NO. 2019-30,726 (5B)

The Florida Bar re-alleges paragraphs 4 through 80 as if set forth fully herein and further alleges:

144. Attorney Kathleen Achille’s firm represented the defendants in the following lawsuits:

Russell Shrewsbury v. Wilmington Savings Fund Society, FSB, et al., in Brevard County Circuit Court Case No. 2018-CA- 12016

and

Krieger v. U.S. Bank, N.A., as Legal Title Trustee for Truman, et al., in Orange County Circuit Court Case No. 2018-CA-003193.

145. Respondent was listed as counsel of record for the plaintiffs in both cases.

146. In the Shrewsbury case in Brevard County, a hearing was held on March 6, 2019 on Achille’s Motion to Quash Service of Process and Motion to Vacate Default where respondent failed to appear.

147. Instead, respondent sent an ex parte email to the presiding judge advising that he could not be appear at the hearing due to a conflict with another matter in Lake County, Florida, that required his attendance.

148. Respondent further advised the judge that he did not represent the plaintiff, Russell Shrewsbury, and never had contact with Shrewsbury.

149. The morning of the hearing respondent filed a Motion to Discharge or Withdraw citing that respondent did not practice in the area of business torts or civil litigation, that he had not met the plaintiff, and that attorneys at Best Defense Law “behaved in a manner not consistent with [respondent’s] understanding and expectations from representations previously made.”

150. Despite respondent’s assertion, all pleadings filed in both the Shrewsbury and Krieger cases bore respondent’s signature block, his electronic signature, and his Florida Bar attorney number.

151. Further, with respect to the Shrewsbury case, Achille’s client was not properly served with process, yet a default was entered against the client.

152. Achille’s firm discovered the default by chance while conducting a routine docket check.

153. Respondent permitted a situation to exist whereby others were able to access his e-filing credentials and file pleadings in respondent’s name in cases where respondent was not representing the clients and had no knowledge of the cases.

154. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar:

a. 3-4.3 (1993) The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

b. 3-4.3 (2018) The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer’s relations as a lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether the act is a felony or a misdemeanor.

c. 4-1.1 A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

d. 4-1.4(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

e. 4-1.8(f) (2010) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

f. 4-1.8(f) (2018) A lawyer is prohibited from accepting compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client- lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

g. 4-1.16(a)(1) Except as stated in subdivision (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or law.

h. 4-3.5(b) In an adversary proceeding a lawyer shall not communicate or cause another to communicate as to the merits of the cause with a judge or an official before whom the proceeding is pending except: (1) in the course of the official proceeding in the cause; (2) in writing if the lawyer promptly delivers a copy of the writing to the opposing counsel or to the adverse party if not represented by a lawyer; (3) orally upon notice to opposing counsel or to the adverse party if not represented by a lawyer; or (4) as otherwise authorized by law.

i. 4-4.1 In the course of representing a client a lawyer shall not knowingly (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 4-1.6.

j. 4-5.1 (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers therein conform to the Rules of Professional Conduct. (b) Any lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

k. 4-5.3 (a) A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.

l. 4-5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4- 1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter.

m. 4-5.4(c) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

n. 4-5.4(d) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

o. 4-5.4(e) A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

p. 4-8.3(a) (2006, 2012, 2018) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.

q. 4-8.3(a) (2019) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.

r. 4-8.4(a) A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

s. 4-8.4(c) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

t. 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.

u. 4-8.6(b) No authorized business entity may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.

v. 4-8.6(c) No person may serve as a partner, manager, director or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state. For purposes of this rule the term “executive officer” includes the president, vice-president, or any other officer who performs a policy-making function.

w. 4-8.6(d) A lawyer who, while acting as a shareholder, member, officer, director, partner, proprietor, manager, agent, or employee of an authorized business entity and engaged in the practice of law in Florida, violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Bar will be subject to disciplinary action.

THE FLORIDA BAR FILE NO. 2020-30,084 (5B)

The Florida Bar re-alleges paragraphs 4 through 80 as if set forth fully herein and further alleges:

155. William Hammond, a resident of Montana, owned a timeshare at a resort known as Festiva, located in Maryland.

156. Although Hammond never retained respondent or Best Defense Law, Festiva resort was advised otherwise.

157. Hammond advised that he was told that the resort had received an injunction from Best Defense Law Team on March 7, 2018.

158. As a result of the apparent legal dispute, Festiva resort refused to permit Hammond use of his timeshare located at a resort property in Maryland.

159. When Hammond attempted to contact respondent and/or Best Defense Law Team, he was unable to reach anyone. Best Defense Law Team’s website was no longer operational, and Hammond was unable to leave a message at the phone number listed.

160. Respondent’s failure to exercise supervision and control over the case managers, lawyers and non-lawyers working with Best Defense Law resulted in respondent being unaware he was representing Hammond.

161. Respondent permitted a situation to exist whereby William Howell was able to use respondent’s law firm to solicit timeshare owners and to lead the owners to believe they were receiving legal services from respondent.

162. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar:

a. 3-4.3 (1993) The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

b. 3-4.3 (2018) The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer’s relations as a lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether the act is a felony or a misdemeanor.

c. 4-1.1 A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

d. 4-1.4 (a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

e. 4-1.5(a) (2012, 2018) An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar.

f. 4-1.6(a) A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

g. 4-1.6(e) A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

h. 4-1.8(f) (2010) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

i. 4-1.8(f) (2018) A lawyer is prohibited from accepting compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client- lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

j. 4-4.1 In the course of representing a client a lawyer shall not knowingly (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 4-1.6.

k. 4-5.1 (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers therein conform to the Rules of Professional Conduct. (b) Any lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

l. 4-5.3 (a) A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.

m. 4-5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4- 1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter.

n. 4-5.4(c) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

o. 4-5.4(d) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

p. 4-5.4(e) A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

q. 4-5.5(a) A lawyer may not practice law in a jurisdiction other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so.

r. 4-7.18(a) (2013) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4–7.11 through 4–7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

s. 4-7.18(a) (2018) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit in person, or permit employees or agents of the lawyer to solicit in person on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, by electronic means that include realtime communication face-to-face such as video telephone or video conference, or by other communication directed to a specific recipient that does not meet the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

t. 4-7.22 (2013) (a) A lawyer may not accept referrals from a lawyer referral service, and it is a violation of these Rules Regulating the Florida Bar to do so, unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer; (2) receives no fee or charge that constitutes a division or sharing of fees, unless the service is a not-for-profit service approved by The Florida Bar pursuant to chapter 8 of these rules; (3) refers clients only to persons lawfully permitted to practice law in Florida when the services to be rendered constitute the practice of law in Florida; (4) carries or requires each lawyer participating in the service to carry professional liability insurance in an amount not less than $100,000 per claim or occurrence; (5) furnishes The Florida Bar, on a quarterly basis, with the names and Florida bar membership numbers of all lawyers participating in the service; (6) furnishes The Florida Bar, on a quarterly basis, with the names of all persons authorized to act on behalf of the service; (7) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the service or a lawyer who accepts referrals from the service; (8) neither represents nor implies to the public that the service is endorsed or approved by The Florida Bar, unless the service is subject to chapter 8 of these rules; (9) uses its actual legal name or a registered fictitious name in all communications with the public; (10) affirmatively states in all advertisements that it is a lawyer referral service; and (11) affirmatively states in all advertisements that lawyers who accept referrals from it pay to participate in the lawyer referral service. (b) A lawyer who accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements or written communications used by the service comply with the requirements of the Rules Regulating the Florida Bar, including the provisions of this subchapter. (c) A “lawyer referral service” is: (1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or (2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program. A pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration, is not a lawyer referral service within the definition of this rule.

u. 4-8.4(a) A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

v. 4-8.4(c) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

w. 4-8.6(b) No authorized business entity may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.

x. 4-8.6(c) No person may serve as a partner, manager, director or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state. For purposes of this rule the term “executive officer” includes the president, vice-president, or any other officer who performs a policy-making function.

y. 4-8.6(d) A lawyer who, while acting as a shareholder, member, officer, director, partner, proprietor, manager, agent, or employee of an authorized business entity and engaged in the practice of law in Florida, violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Bar will be subject to disciplinary action.

THE FLORIDA BAR FILE NO. 2020-30,781 (5B)

The Florida Bar re-alleges paragraphs 4 through 80 as if set forth fully herein and further alleges:

163. Joseph Nemchik believed he retained respondent through his membership in Resilient Group, PMA to represent him as the plaintiff in a civil case filed in Orange County Circuit Court, Nemchik v. Parablis, et. al., Case No. 2016-CA-010177.

164. Respondent explained that his involvement in this case was limited to filing a motion to continue on January 15, 2018, after being approached by a shared administrative person that neither attorney Roebuck or Lim were available to cover a hearing that was set.

165. However, respondent’s motion to continue filed on January 15, 2018, stated that respondent’s law firm had just been retained by Nemchik on January 12, 2018, and that he was requesting to reschedule the hearing within the next thirty days to competently prepare to argue opposing counsel’s motions.

166. Respondent’s motion indicated that it was submitted by Allan Campbell, Esq., with Best Defense Law.

167. Furthermore, a Notice of Appearance was filed on January 10, 2018, also stating that it was submitted by respondent and that Allan Campbell, Esq., with Best Defense Law was entering his appearance as counsel of record.

168. Prior to respondent entering his notice of appearance, Nemchik was pro se.

169. Respondent received an Order Setting Status Hearing approximately 20 months later and realized he remained counsel of record in Nemchik’s case.

170. Upon receiving this order setting a status hearing for January 10, 2020, respondent promptly filed a Motion to Withdraw from Continued Representation on November 22, 2019.

171. In his motion to withdraw, respondent stated that he was no longer associated with Best Defense Law and had not been since March 2018.

172. Respondent further stated that he had not met with and did not know nor have any attorney-client relationship with Nemchik since having left Best Defense Law.

173. Finally, respondent stated that he had no independent means of contacting Nemchik about the case and the hearing.

174. Respondent did not set his motion to withdraw for hearing, and the court did not enter an order granting respondent’s withdrawal.

175. When respondent and Nemchik failed to appear for the status hearing on January 10, 2020, the case was dismissed.

176. Respondent believed he did not need to appear at the January 10, 2020, hearing because he could offer no information about the case and expected that Nemchik would be present as he was noticed about the hearing.

177. Nemchik has stated that he had met with respondent many times and that respondent had all of his contact information.

178. After learning the case was dismissed, Nemchik filed a motion to vacate the dismissal. The court then set a hearing on Nemchik’s motion for January 30, 2020.

179. Thereafter, Nemchik contacted respondent and insisted that respondent file a motion to correct the dismissal.

180. On January 29, 2020, respondent filed a Motion to Hear Motion to Withdraw First and a Cross-Notice of Hearing to have his motion to withdraw heard at the January 30 hearing.

181. Both respondent and Nemchik appeared at the January 30, 2020, hearing.

182. Respondent stated that the court did not hear argument on respondent’s motion to withdraw and found that because Nemchik had counsel, his pro se motions were moot.

183. Respondent then filed a Motion to Correct Mistake based on the Florida Rules of Criminal Procedure, realizing that he needed the case reopened for the court to hear his motion to withdraw.

184. A hearing was held on respondent’s motion on March 3, 2020.

The court denied respondent’s motion to correct mistake but granted his amended motion to withdraw.

185. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar:

a. 3-4.3 (1993) The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

b. 3-4.3 (2018) The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer’s relations as a lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether the act is a felony or a misdemeanor.

c. 4-1.1 A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

d. 4-1.4(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

e. 4-1.5(a) A lawyer must not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar.

f. 4-1.8(f) (2010) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

g. 4-1.8(f) (2018) A lawyer is prohibited from accepting compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client- lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

h. 4-1.16(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers and other property relating to or belonging to the client to the extent permitted by law.

i. 4-3.3(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

j. 4-3.4(c) A lawyer must not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

k. 4-5.1 (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers therein conform to the Rules of Professional Conduct. (b) Any lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

l. 4-5.3 (a) A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.

m. 4-5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4- 1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter.

n. 4-5.4(c) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

o. 4-5.4(d) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

p. 4-5.4(e) A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

q. 4-7.18(a) (2013) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4–7.11 through 4–7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

r. 4-7.18(a) (2018) Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit in person, or permit employees or agents of the lawyer to solicit in person on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, by electronic means that include realtime communication face-to-face such as video telephone or video conference, or by other communication directed to a specific recipient that does not meet the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

s. 4-7.21(f) A name, letterhead, business card or advertisement may not imply that lawyers practice in a partnership or authorized business entity when they do not.

t. 4-7.22 (2013) (a) A lawyer may not accept referrals from a lawyer referral service, and it is a violation of these Rules Regulating the Florida Bar to do so, unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer; (2) receives no fee or charge that constitutes a division or sharing of fees, unless the service is a not-for-profit service approved by The Florida Bar pursuant to chapter 8 of these rules; (3) refers clients only to persons lawfully permitted to practice law in Florida when the services to be rendered constitute the practice of law in Florida; (4) carries or requires each lawyer participating in the service to carry professional liability insurance in an amount not less than $100,000 per claim or occurrence; (5) furnishes The Florida Bar, on a quarterly basis, with the names and Florida bar membership numbers of all lawyers participating in the service; (6) furnishes The Florida Bar, on a quarterly basis, with the names of all persons authorized to act on behalf of the service; (7) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the service or a lawyer who accepts referrals from the service; (8) neither represents nor implies to the public that the service is endorsed or approved by The Florida Bar, unless the service is subject to chapter 8 of these rules; (9) uses its actual legal name or a registered fictitious name in all communications with the public; (10) affirmatively states in all advertisements that it is a lawyer referral service; and (11) affirmatively states in all advertisements that lawyers who accept referrals from it pay to participate in the lawyer referral service. (b) A lawyer who accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements or written communications used by the service comply with the requirements of the Rules Regulating the Florida Bar, including the provisions of this subchapter. (c) A “lawyer referral service” is: (1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or (2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program. A pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration, is not a lawyer referral service within the definition of this rule.

u. 4-8.3(a) (2006, 2012, 2018) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.

v. 4-8.3(a) (2019) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.

w. 4-8.4(a) A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

x. 4-8.4(c) A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

y. 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.

z. 4-8.6(b) No authorized business entity may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.

aa. 4-8.6(c) No person may serve as a partner, manager, director or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state. For purposes of this rule the term “executive officer” includes the president, vice-president, or any other officer who performs a policy-making function.

bb. 4-8.6(d) A lawyer who, while acting as a shareholder, member, officer, director, partner, proprietor, manager, agent, or employee of an authorized business entity and engaged in the practice of law in Florida, violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Bar will be subject to disciplinary action.

WHEREFORE, The Florida Bar prays respondent will be appropriately disciplined in accordance with the provisions of the Rules Regulating The Florida Bar as amended.

LAURA N. GRYB,
Bar Counsel The Florida Bar
1000 Legion Place, Suite 1625
Orlando, Florida 32801-1050
(407) 425-5424
Florida Bar No. 89047
lgryb@floridabar.org
orlandooffice@floridabar.org
dsullivan@floridabar.org

PATRICIA ANN TORO SAVITZ
Staff Counsel The Florida Bar
651 E. Jefferson Street
Tallahassee, Florida 32399
(850) 561-5839
Florida Bar No. 559547
psavitz@floridabar.org

I certify that this document has been efiled with The Honorable John A. Tomasino, Clerk of the Supreme Court of Florida, using the e-filing portal, and that a copy has been furnished by United States Mail via certified mail No. 7017 1450 0000 7821 0827, return receipt requested to Allan Campbell, Respondent, whose record Bar address is The Law Office of Allan Campbell, Post Office Box 953724, Lake Mary, Florida 32795- 3724, and via email at attyacampbell@aol.com; and to Laura N. Gryb, Bar Counsel, The Florida Bar, 1000 Legion Place, Suite 1625, Orlando, Florida 32801-1050, via email at lgryb@floridabar.org, orlandooffice@floridabar.org, on this 29th day of October, 2021.

Patricia Ann Toro Savitz

Staff Counsel

PLEASE TAKE NOTICE that the trial counsel in this matter is Laura N. Gryb, Bar Counsel, whose address, telephone number and primary email address are The Florida Bar, 1000 Legion Place, Suite 1625, Orlando, Florida 32801-1050, (407) 425-5424 and lgryb@floridabar.org, orlandooffice@floridabar.org, dsullivan@floridabar.org. Respondent need not address pleadings, correspondence, etc. in this matter to anyone other than trial counsel and to Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399, psavitz@floridabar.org.

RULE 3-7.6(h)(2), RULES REGULATING THE FLORIDA BAR, PROVIDES THAT A RESPONDENT SHALL ANSWER A COMPLAINT.

About Allan Campbell

Residence

Today, Allan Campbell Works Here...

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Bankruptcy

Florida Foreclosures and The Allan Campbell Pen Name Series: Titan Lavine

Darrin Lavine, Lina Lavine and their Relationship with Allan Campbell, Roddy Boling and Chris Lim et al, is detailed in this LIF exclusive series.

Published

on

LIF Reviews and Investigates D. C. Lavine and his wife, Lina Lavine, et al.

This is an evolving article, bookmark for updates as it forms part of a series of articles by LIF in a complex and lengthy scheme.

Seminole Court Record Search for Darrin Lavine

The Foreclosure Defender Darrin Lavine is Defending his Own Residence from Foreclosure

U.S. Bank, National Association v. Titans Group of Seminole County, Florida

(6:21-cv-00715-WWB-EJK)

District Court, M.D. Florida

OCT 26, 2021 | REPUBLISHED BY LIT: MAY 4, 2022

U.S. Bank, National Association v. Titans Group of Seminole County, Florida

(6:19-cv-01434)

District Court, M.D. Florida

AUG 5, 2019 | REPUBLISHED BY LIT: MAY 4, 2022

DARRIN C LAVINE -VS- CHRISTIANA TRUST

Case Number: 2019CA003134

OCT 10, 2019 | REPUBLISHED BY LIT: MAY 21, 2022

Closed, 19 Apr. 2021

ORDER ON DEFTS US BANK NA AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TRUST & MTG ELECTRONIC REGISTRATION SYSTEMS INC AMENDED MOTION TO DISMISS AMENDED COMPLAINT – GRANTED – JUDGE STACY 4/18/21

DARRIN C LAVINE -VS- US BANK NATL ASSN

Case Number: 2020CA000289

JAN 31, 2021 | REPUBLISHED BY LIT: MAY 21, 2022

Vol. Dismissal, May 2020

3314 Sunset Ridge Ct, Longwood, Fl. 32779

US BANK NATL ASSN -VS- TITANS GROUP A TEXAS JOINT STOCK

Case No. 2019CA002063 [Active Foreclosure Case]

Tim Quinones. Florida Foreclosure Defense Lawyer

UPDATED DOCKET (11 MAY LAST ENTRY)

Original Complaint and Petition for Foreclosure by US Bank.

Multi-Tasker Lina Lavine - Coldwell Banker Realtor..and....

Extract from Fl. Bar complaint against Florida Lawyer Andrea Marie Roebuck

Nov. 10, 2021

7. Initially, respondent was employed directly by Titans Reserve Group, where she worked under Darrin Lavin and his wife, Lina Lavine, both of whom were nonlawyers.

8. Respondent testified during a sworn statement in this disciplinary matter that Titans Reserve Group did “pro se handling of issues” and “case law education.”

9. Kelley Andrea Bosecker provided members of Titans Reserve Group with legal services until her suspension from the practice of law effective May 27, 2016.

10. During this time, respondent opened her own law firm, Allegiant Law, P.A., on or about May 5, 2017, naming herself as vice president and Lina Lavine, as secretary.

11. Lina Lavine handled the bookkeeping for Allegiant Law, P.A. and Titans Reserve Group.

12. After forming Allegiant Law, P.A., respondent continued to work with Titan Reserve providing legal services to its members.

13. The members would pay Titans Reserve Group for legal services, and Titans Reserve Group would pay respondent’s salary as it had previously done…

JPMORGAN CHASE BANK NATL ASSN -VS- KENNETH E TAYLOR

Case Number: 2019CA001478 [Active Foreclosure]

644 W Colonial Dr, Orlando, FL 32804 (Lot/Land)

Original Complaint and Petition for Foreclosure by JPMorgan Chase.

Despite an order to show cause, the list of Boling defendants (Roddy Boling is the grandmaster of this foreclosure defense scheme and the address to where all summons and correspondence goes to – his mortgaged residence which is in pre-foreclosure itself) combined with the fact that Lavine is accepting mail via his lawyer in his own residential foreclosure case as detailed above, they have managed to spin the wheels on this foreclosure case for years without even effectively starting the lawsuit (due to aforementioned service issues).

It should also be noted that Boling is also accessible for service by the courts, he’s never out of them [except for his jail and halfway house stints] and has many ongoing cases where service could be effected, the most obvious is the jeep insurance payout dispute lawsuit.

Darrin Lavine et al as Defendant(s) to a "Members" Foreclosure Case

THE BANK OF NEW YORK -VS- BEVERLY MULLINGS

Case No. 2018CA003330 [Active Foreclosure Case]

829 Eagle Claw Ct, Lake Mary, FL 32746

In this foreclosure, we have ‘pro se’ defendant Lavine stating he needs an extension of time to file a response after the case was removed by Mullings and remanded to the State by the federal court, middle district (sounds familiar).

Original Complaint and Petition for Foreclosure by BONY.

US BANK NATL ASSN -VS- SANDRA L THOMAS

Case No. 2018CA003066 [Fraudulent transfer for no monetary value by the Lavines.]

702 Lighthouse Ct, Altamonte Springs, FL 32714

Judge Stacy’s Order Voiding Transfer as Fraudulent

Here we have admonished attorney Chris Lim moving in to represent the Lavines’ and also the shell game of companies, e.g. Resilient Roofing, Inc...

WELLS FARGO BANK NA -VS- DANIEL RODRIGUEZ

Case No. 2017CA001773 [Foreclosure Sale Canceled Pending Loan Mod etc.]

1344 Holly Glen Run, Apopka, FL 32703

Judge Debra Nelson found for Wells Fargo and then left the Bench. Judge Christopher Sprysenski replaced her in this case.

Court Hearing Transcript Judge Debra Nelson in Wells Fargo v Rodriguez

The homeowners won judgment in the first Wells Fargo lawsuit. Not this time.

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Continue Reading

Bankers

PHH Ocwen Involved in Yet Another Case of Harassment

PHH Mortgage Corporation is continuing to dunn Plaintiff for a debt that he does not owe,

Published

on

Brunson v. PHH Mortgage Corporation

(3:22-cv-00127)

District Court, M.D. Florida

FEB 7, 2021 | REPUBLISHED BY LIT: APR 6, 2022

In June 2006, Plaintiff executed a mortgage and note on his home at 4441 Loveland Pass Drive East, Jacksonville, FL, 32210 which at all relevant times was serviced by Defendant PHH.

On or about March 16, 2018, Deutsche Bank National Trust, the holder of the original mortgage, filed a claim with the bankruptcy court.

On or about August 16, 2018, the Trustee for the bankruptcy court agreed to Plaintiff’s Chapter 13 Plan, disallowing Deutsche Bank’s mortgage claim from payment. The mortgage servicer, at the time, Ocwen, had this information.

The plan states as follows: “DEUTSCHE BANK NATIONAL TRUST COMPANY . . . Secured $82,562.77 $0.00 $0.00 Claim Notes: Claim Disallowed.”

The Debt was discharged in Plaintiff’s bankruptcy on May 6, 2021.

NOTICE OF DISMISSAL WITH PREJUDICE (AS TO TRANS UNION, LLC)

Plaintiff, CORNELL WADE BRUNSON, SR., by and through undersigned counsel, hereby files this Notice of Dismissal with Prejudice and would represent to the Court that this action has been resolved against Defendant TRANS UNION, LLC.

Dated this 31st day of March, 2022,

MAX STORY, P.A.
/s/Max Story, Esquire

MAX STORY, ESQUIRE
Florida Bar No.: 527238

AUSTIN J. GRIFFIN, ESQUIRE
Florida Bar No.: 117740
328 2nd Avenue North, Suite 100
Jacksonville Beach,
FL 32250
Telephone (904) 372-4109
max@storylawgroup.com
Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 31, 2022, I electronically filed the foregoing with Clerk of the Court using the CM/ECF. I also certify that the foregoing document is being served this day on all counsel either via transmission of Notices of Electronic Filing generated by

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notice of Electronic Filing.

/s/Max Story, Esq.

Florida Bar No. 527238

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



Continue Reading

Appellate Circuit

A Shady Foreclosure Mill Collapse Raises Questions About Fraudulent Transfers and ‘That’ Factoring Agreement

It appears to LIF, from this and related articles we’re publishing, that NYC Lawyer Craig McGrain’s Factoring company was behaving more like an investor/owner than injured 3rd Party.

Published

on

LIF Releases a Series of Articles on Steven Ablitt’s Foreclosure Mill

PUBLISHED BY LIT: MAR. 21, 2022

Mass. lawyer Steven Ablitt was finally disbarred in 2021, but not before leaving a trail of upset and aggrieved staff without a job or payment of wages earned, clients who incurred substantial theft of funds from the firms’ IOLTA account(s), and shady associates and legal colleagues who Ablitt associated with ending up in financial strife and/or jail, due to the collapse of his firm as a result of his mismanagement and outright fraud.

In this article you’ll read about the background to the collapse of his default business (foreclosing homes after the 2008 financial crisis) and why we question the relationship between Ablitt and McGrain of Durham Commercial Capital, a factoring company which appears to have been acting much more than just a third party vendor, when considering the comments from the former staff employed at the law firm.

Strained foreclosure law firm shuts down after staff walks

JUL. 24, 2014 | REPUBLISHED BY LIT: MAR. 20, 2022

The troubled Woburn-based foreclosure firm Connolly, Geaney, Ablitt & Willard ceased operations over the Fourth of July holiday weekend, leaving employees unpaid and clients in potentially difficult situations.

Lawyers Weekly first reported on the firm’s disarray on June 12.

The story cited mass layoffs, unpaid employee insurance premiums and taxes, a whistleblower suit filed against the firm, and, ironically, the loss of its office building to foreclosure.

Since then, additional information about the firm and entities controlled by lawyer Steven A. Ablitt has come to light.

Connolly Geaney’s demise played out in spectacular fashion earlier this month when its remaining employees in Massachusetts and Florida walked out after being informed they would not be paid.

Internal emails obtained from several sources paint a chaotic picture of the firm’s final days, with employees frantically inquiring about their pay, only to be sent running in circles by Ablitt, the firm’s leaders

and officials from Durham Commercial Capital, a “factoring firm” that had been funding Connolly Geaney’s operations.

Durham Commercial officials confirmed that it has ceased providing money to the law firm or its affiliates after several years, but denied influence or control over payroll decisions.

President Craig L. McGrain, a New York lawyer, said in a prepared statement that Durham is undertaking an investigation into the law firm.

“Durham ceased purchasing its accounts due to what Durham deemed to be numerous breaches of contract arising in connection with certain of CGAW’s actions and behavior,”

Michael W. Ullman, a Florida lawyer representing Durham Commercial, said in an emailed response to questions.

In a July 6 email to firm and Durham Commercial officials, Antonio E. Campos, a lawyer in charge of Connolly Geaney’s Florida office, discussed its “constructive shut down.”

According to Campos, Durham Commercial’s Brian Mosher said payroll would not be met unless Ablitt paid it himself.

Campos wrote that he called name partner John Connolly Jr. on July 3 “to apprise him of the dire situation with the Florida office and to inform him … Mosher … had advised me of [Durham Commercial’s] intent to walk away if certain financial transactions were not met.

Mr. Connolly advised me that there was nothing that could be done and that he and the Board of Directors were also going to walk away.”

In an interview with Lawyers Weekly, Ablitt denied any responsibility for the firm, saying he was merely a client relations consultant.

Ablitt said he “resigned in every official capacity” in 2013 after his previous firm, Ablitt Scofield, merged with Connolly & Geaney and that he “conveyed all interest and all of my stock in March 2014.”

In a firm-wide email dated July 2, Ablitt wrote that “[i]t seems like [Durham Commercial’s] Brian Mosher and Craig McGrain are giving you inaccurate information.

The monies earned off your hard work has gone directly to Craig and Brian.

I am not sure what they have done with it.

I can’t advise you on what to do, but I can with certainty tell you that I will not be paying for payroll this week. … Please do not direct questions about payroll to my attention, I am no longer part of the firm.”

Cheryl B. Pinarchick of Boston’s Murphy & King confirmed that she is “working with one former employee in connection with potential claims against the firm” and has been contacted “by a number of other former employees seeking legal advice in connection with monies they believe are due to them.”

Kevin P. Geaney, who previously answered some questions on behalf of the firm, did not respond to recent interview requests.

In a Middlesex Superior Court filing in response to a former vendor’s lawsuit, Geaney acknowledged that Durham Commercial has an undischarged, “blanket” UCC lien on all the firm’s assets.

In addition to not paying employees, Connolly Geaney also failed to pay Florida-based Stewart Law Group for making appearances on behalf of the firm, according to an email obtained by Lawyers Weekly:

“Effective immediately, Stewart Law Group will not appear on behalf of Connolly Geaney law firm due to non-payment for services rendered,”

managing attorney Leslie S. Stewart wrote in a July 3 “stop work notice” to Connolly Geaney officials.

“This affects all appearances, including those previously confirmed.”

‘Cash flow crisis’

Former employees contend Ablitt is understating his role at the firm. Those employees include two paralegals who said Ablitt personally announced a round of firm layoffs in March.

When Durham Commercial froze the law firm’s accounts earlier this year, employees received handwritten paychecks from one of Ablitt’s entities, Summit Title Corp., which operated out of the same Cambridge Road office building in Woburn as Connolly, Geaney, Ablitt & Willard.

Ablitt explained that was done “as a favor on a one-time basis” because the law firm did not have enough checks to pay everyone after it lost the ability to use payroll service ADP, and that the requisite funds were wired from the law firm to Summit Title.

Ablitt also claimed to be Connolly Geaney’s largest creditor.

“No one has been hurt more than me financially,”

Ablitt wrote Lawyers Weekly in an email in which he claimed to have given $1.3 million in loans to the firm.

“It took me 14 years to build a firm that was billing 125k to 150k a day.

I built this company more or less by myself.

It took Jay Connolly, Kevin Geaney, Rachelle Willard, [former Chief Financial Officer] Bob Feige, Brian Mosher and Craig McGrain 16 months to destroy what was once a well respected firm.”

But allegations against predecessor firms controlled by Ablitt have been kicking around several Massachusetts courthouses in recent years and suggest that financial problems surfaced before the merger with Connolly & Geaney.

Many of the lawsuits pertain to Ablitt-affiliated businesses created to serve other real estate-related needs.

In addition to Summit Title, they include Ablitt’s Bay State Homes, previously Bay State Residential Brokerage, which was formed to leverage Ablitt’s industry contacts to market homes that remained in lender clients’ hands post-foreclosure, according to filings in a lawsuit between Ablitt and his original partner in the business.

Former Chief Financial Officer Alfred Moss said he was aware of a cash flow problem as early as 2011, according to his deposition testimony in a Norfolk Superior Court lawsuit brought against Ablitt by auctioneer Daniel J. Flynn & Co.

In a June 2012 affidavit filed in another vendor lawsuit in Middlesex County, Ablitt’s former partner, Lawrence F. Scofield Jr., said the firm was in the midst of a “cash flow crisis.”

In August 2012, LPS Agency Sales & Posting Inc. sued Ablitt Scofield and Ablitt for failure to make payments required under a $2.3 million promissory note personally guaranteed by Ablitt.

The parties agreed to a stipulated dismissal two months later, but, like Durham Commercial, LPS has an undischarged blanket lien against all Connolly, Geaney, Ablitt & Willard’s assets, according to Geaney’s recent filing in a Middlesex Superior Court case.

In an October 2012 deposition, Scofield acknowledged that the firm had not paid some vendors, even as it sent clients bills that itemized their charges.

At a Middlesex Superior Court hearing that year, Ablitt contended that his clients owed him far more — $7 million — than he owed his vendors — $2.5 million.

Scofield testified about Ablitt’s preference for hiring friends and/or companies he owned to perform services for the firm.

Those companies included AAA Constable Service, run by Jason Burke, who played hockey with Ablitt.

“[P]eople within the firm felt that the rates charged were in numerous cases excessive, but we were ordered to use AAA’s services because they were friends of Steven’s,” Scofield testfied.

Ablitt eventually decided to perform process-serving himself, according to filings in vendors’ lawsuits.

“Steven Ablitt wanted to set up his own service of process company as he thought it was profitable, and he created Nationwide [Service of Process],” Scofield said at the deposition. “And we basically were told to start sending our service of process work to Nationwide and not to” AAA Constable Service.

Nationwide served the firm’s lawsuits in Florida despite a state law that requires that a process server “be disinterested in any process he or she serves.” According to Ablitt’s testimony in a Middlesex Superior Court case, Nationwide hired independent contractors to serve process.

In his deposition and in a June 2012 affidavit, Scofield described the law firm’s relationships with Liberty Auctions Corp. and moving company Zambia Corp.

“Since the beginning of this year, Mr. Ablitt has orally expressed that he is a major stockholder in Zambia Corp,”

Scofield said in the 2012 affidavit.

“Since 2008, I have personal knowledge of the firm management policy that whenever a need exists for moving services or client property preservation services, such work should, at Mr. Ablitt’s direction, be sent to Zambia Corporation.”

According to filings and testimony in multiple state lawsuits, after falling out with Daniel J. Flynn & Co., Ablitt began sending his auction business to Liberty Auctions, owned by his hockey friend Christopher Kearney.

When law firm Ablitt Scofield later came to owe Liberty Auctions more than $1 million, according to Scofield’s deposition, the firm devised a system whereby clients in new cases would pay extra for auction services to cover the amounts the firm owed for auctions previously performed and billed to other cases.

“And we, several months ago said, ‘Look, why don’t we allow you to increase your rate to our clients and we’ll use that new increase to offset the amount that we owe you from the past,’” Scofield said at his deposition.

Complaints lodged with bar overseers

Bar disciplinary authorities in Florida and Massachusetts have received complaints about Connolly, Geaney, Ablitt & Willard.

In response to an inquiry from several of the firm’s Florida lawyers, the Florida Bar Ethics Department concluded in April that Connolly Geaney was running afoul of rules by operating a Florida office despite having no partner based and licensed in Florida to operate it.

And on July 10, Florida bar counsel informed a former Connolly Geaney paralegal that his wide-ranging complaint, which included allegations of the unauthorized practice of law, was “being referred to the Unlicensed Practice of Law department for review.”

One of the most recent bar complaints, filed in Massachusetts by former Connolly Geaney lawyer Walter H. Porr Jr., was provided to Lawyers Weekly by another employee who did not want to be named because he did not have permission to share it. Among Porr’s more serious allegations is his contention that the firm commingled client money in the firm’s operating account.

Lawyers Weekly reviewed a case in which it took the firm more than a year to deposit surplus funds from a foreclosure sale that it was supposed to be holding in trust for Sovereign Bank.

According to a review of the case file in Sovereign Bank v. Boston Local Development Corp., et al., Superior Court Judge Paul E. Troy approved in August 2012 Sovereign Bank’s motion to deposit the surplus funds for the reimbursement of other creditors, including the Boston Local Development Corp. Connolly Geaney did not deposit the funds with the court until November 2013.

Also during that period, Nationstar Mortgage dropped the firm due to “the slow pace of movement on their files,” according to a firm-wide email written by former CFO Feige in April 2013, in which he added:

“This performance has been true across all of our clients,” and, “We don’t need word of this to spread.”

Porr’s BBO complaint also alleges that the firm withheld but failed to pay his state and federal taxes; failed to report and pay unemployment insurance premiums; withheld but did not pay health insurance premiums; bounced hundreds of checks in excess of $100,000 “to courts, registries, newspapers, process servers, etc.”; and, since firing him in May, refused to substitute him out of three pending cases in which he was representing the firm, and hundreds more in which he was representing the firm’s clients.

Porr’s complaint was filed June 13.

The Office of Bar Counsel does not confirm or deny the existence of any investigation until and unless it files a petition for discipline, so it is not known whether the lawyers named — Ablitt, Geaney, Connolly and Willard — have responded to the allegations.

Feige declined to comment through his lawyer, Tara M. Swartz of Boston. Connolly and Willard did not return messages left on their home phones.

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As principal of the firm, Michael Ullman has served as counsel and trusted advisor to over 200 factoring companies throughout the United States and abroad.

He also serves numerous other business clients in a range of industries.

He started Ullman & Ullman in 1980.

Ullman & Ullman, P.A. specializes in all forms of commercial transactions and litigation, including domestic, international and complex arbitration proceedings, entity formation and drafting of contracts and agreements.

Because of his more than 35 years of experience and significant involvement with factoring, forfaiting and asset-based lending, Mr. Ullman has extensive familiarity with business operations in a diverse range of industries.

Mr. Ullman serves as co-counsel for the International Factoring Association, a position he has held for over 10 years, and lectures frequently at IFA events as well as publishing frequently in the organization’s journal.

Education

Juris Doctor, Shepard Broad Law Center, Nova Southeastern University, 1979;
Graduated Magna Cum Laude in top 1% of class;
Served as member of and published for Nova Law School Law Review;
Bachelor of Arts, University of Florida, 1975

Admitted to Bar

Florida Bar

United States Bankruptcy Courts for the Southern, Middle and northern Districts of Florida

Federal Courts for the Southern, Middle and northern Districts of Florida

Federal Courts of Appeals, 11th and 5th Circuits

Received pro hac vice status to serve clients in numerous states throughout the country

Recent Speaking Engagements

May, 2021 – IFA 27th Annual Factoring Conference in Phoenix, AZ.

October, 2019 – IFA Supply Chain Finance Training Class in Las Vegas, NV.

April, 2019 – IFA 25th Annual Conference in San Diego, CA.

Published Articles

Bankruptcy: To Be Or Not To Be — Preferred
The Commercial Factor, newsletter of the International Factoring Association,
Volume I, Number I

Banks Beware: You May Owe Your Customer’s Factor! (or) Hey Factors: Does Your Client’s Bank Owe You Money?
The Commercial Factor, newsletter of the International Factoring Association,
Volume I, Number II

You Heard Right: You can factor a client who sells you invoices for its real estate construction jobs, you just have to watch out for….
The Commercial Factor, newsletter of the International Factoring Association,
Volume II, Number III

Recognized Honors

Michael W. Ullman was inducted as a Fellow into the American College of Commercial Finance Lawyers (“ACCFL”), a distinguished honor recognizing his prominence and substantial contributions in the practice of commercial finance, during the ABA Business Law Section meeting held in Montreal, Canada April 9, 2016.

The ACCFL, founded in 1991, is an exclusive group of commercial finance lawyers, jurists and academics who have not only achieved preeminence in the field of commercial finance law, but who also have contributed significantly to the education of others in commercial finance law through teaching, lecturing or published writings

. The ACCFL is dedicated to promoting the field of commercial finance law through education, legislative reform and the recognition of distinguished practitioners, jurists and academics. The College offers a venue to promote and recognize outstanding achievement and advances in the field of commercial finance law.

Possessing exceptional skills as an attorney in the financial services sector, Craig McGrain currently acts as President of Durham Funding, located in Pittsford, New York. Craig McGrain leads all legal negotiations for the firm and successfully directs operations in the sales, marketing, and accounting departments of the company as well.

An outstanding and very motivated student, Craig McGrain graduated from the State University of New York system’s University at Buffalo in three years. Receiving honors and membership in the Phi Beta Kappa Society, Craig McGrain was awarded a Bachelor of Science in Sociology and Statistics. At Vanderbilt University Law School, Craig McGrain ranked in the top of his class and edited for the Vanderbilt Law Review.

After obtaining a Juris Doctor degree, Craig McGrain began his legal career at Nixon Peabody LLP. Gaining in-depth experience in law pertaining to financial services, Craig McGrain concentrated his practice on commercial lending and loan restructuring.

Craig McGrain’s early success as an attorney led him to a partnership at the highly influential firm Hodgson, Russ, Andrews, Woods, and Goodyear, LLP (now Hodgson Russ LLP), located in Rochester, New York.

Craig McGrain headed the financial services department for the firm and accrued significant experience in handling complex litigation and structuring for lenders and other financial institutions.

Representing lenders in the United States and abroad, Craig McGrain has handled negotiations for bankruptcy proceedings and other related matters.

Committed to upholding the highest ethics in his profession, Craig McGrain is a member of the New York State Bar Association.

Craig McGrain gives generously of his time to his local community of Pittsford, New York, by coaching youth in a variety of sports activities. Fishing and playing tennis and hockey are among Craig McGrain’s favorite ways to relax in his free moments.

 

Missouri Court of Appeals,Western District.

Joseph LOVENDUSKI, Respondent, v. Craig L. McGRAIN, Appellant.

No. WD 59260.
Decided: August 07, 2001

Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN, J. and JAMES M. SMART, JR., J. Ann E. Buckley, St. Louis, for appellant. Joseph W. Vanover, Keith Wayne Hicklin, Platte City, for respondent.FACTUAL BACKGROUND

Mr. Craig McGrain appeals the default judgment against him and in favor of Mr. Joseph Lovenduski on Mr. Lovenduski’s “Petition on Loan/Breach of Contract.”   The issue in this case concerns the exercise of personal jurisdiction over an out-of-state defendant by the circuit court.   The history of the case, as demonstrated by the record, is as follows.

Mr. Lovenduski filed a petition against Mr. McGrain, a New York defendant, on April 20, 2000, to recover $120,000 in funds loaned, plus interest.   The petition alleged that Mr. Lovenduski was a Missouri resident and that Mr. McGrain was a resident of New York. Apparently, the parties did not execute a written agreement.   The petition alleged, however, that on two occasions Mr. Lovenduski borrowed $60,000 from Citizens Bank & Trust in Livingston, Missouri, and that the funds were advanced to Mr. McGrain through an affiliated corporation, First Austin Funding Corporation.   According to the petition, Mr. McGrain agreed to repay the loan, made some of the monthly payments, but eventually ceased payment.   Further, it alleged that the “transaction occurred” in the State of Missouri.

Mr. McGrain was personally served in New York on April 28, 2000.   On May 30, 2000, Mr. McGrain’s attorney filed a “Special Entry of Appearance to Contest Personal Jurisdiction.”

Mr. Lovenduski filed a “Motion for Entry of Default Judgment” on June 19, 2000.   Included with the motion was an “Affidavit in Support of Default Judgment” signed by Mr. Lovenduski that contained substantially the same facts as alleged in the petition, including the contention that the “transaction occurred” in the State of Missouri.   The motion was to be heard on July 7, but Mr. McGrain requested a continuance on June 26.   On July 21, 2000, the court held a hearing on Mr. Lovenduski’s motion.   Prior to the hearing, no motion to dismiss for lack of personal jurisdiction had been made by Mr. McGrain, nor had he filed an answer.   In entering default judgment against Mr. McGrain, the circuit court deemed the allegations in Mr. Lovenduski’s petition admitted.   On July 31, 2000, Mr. McGrain’s attorney filed an “Entry of Appearance” in addition to a “Notice of Hearing on Motion to Set Aside Default Judgment,” “Motion for Leave to File Answer Out of Time,” and “Motion to Dismiss for Lack of Personal Jurisdiction.”   The “Motion to Set Aside Default Judgment” was also filed on July 31, accompanied by an “Affidavit Denying Personal Jurisdiction” signed by Mr. McGrain.   Amended motions to set aside the default judgment were filed on August 14 and August 18.   On August 17, Mr. Lovenduski filed “Suggestions in Opposition to Defendant’s Amended Motion to Set Aside Default Judgment.”   Mr. McGrain’s Answer was filed on August 18, and his motion to dismiss was filed on August 25.   The motion to dismiss was accompanied by an affidavit signed by Mr. McGrain, which stated that he had been a resident of New York for fifteen years and was never a resident of Missouri;  he had never borrowed any money in Missouri;  prior to 1998, he had never been in Missouri;  he was in the State of Missouri once in 1998 for a three-hour business meeting unrelated to matters involved in the litigation;  he had no assets in the State of Missouri;  that he had no business interests in the State of Missouri;  and he had no other contacts with the State of Missouri.   Also, on August 25, “Notice of Hearing on the Motion to Dismiss” was filed.

On August 18, a hearing was held in regard to the motion to set aside the default judgment.   At the hearing, Mr. McGrain’s attorney acknowledged that “it is within [the circuit court’s] discretion to award fees against me for the trouble that has gone to the plaintiff’s law firm to try to press me into this.”   The court sustained Mr. McGrain’s motion, conditioned upon the payment of $500 in partial attorney’s fees.   An “Order Setting Aside Default Judgment” was filed on August 22, requiring payment of the partial attorney’s fees within fifteen days.

On September 11, the parties consented to October 6 as the date for the hearing on Mr. McGrain’s Motion to Dismiss.   However, on October 5, Mr. McGrain’s counsel requested leave to withdraw as Mr. McGrain’s attorney, citing Mr. McGrain’s failure to communicate as the grounds for the request.   The following day, Mr. Lovenduski filed a “Motion for Entry of Order Denying Amended Motion to Set Aside Default Judgment,” which alleged that the $500 in partial attorney fees had not been paid.   Also, on October 6, the law firm presently representing Mr. McGrain made its entry of appearance.   Former counsel for Mr. McGrain was granted leave to withdraw on October 25.   On November 6, the court entered an “Order and Judgment Denying Amended Motion to Set Aside Default Judgment,” which overruled Mr. McGrain’s amended motion to set aside the default judgment and reinstated the default judgment originally entered.   An “Amended Order and Judgment Denying Amended Motion to Set Aside Default Judgment” was filed on November 7, and Mr. McGrain filed his notice of appeal the same day.

In summary, the timeline for the case in the year 2000 is as follows:

April 20-Petition filed by Mr. Lovenduski

April 28-McGrain served in New York

May 30-“Special Entry of Appearance to Contest Personal Jurisdiction” filed

July 21-Hearing on Mr. Lovenduski’s motion for default judgment;  default judgment issued

July 31-“Entry of Appearance” filed by Mr. McGrain’s attorney;  “Notice of Hearing on Motion to Set Aside Default Judgment,” “Motion for Leave to File Answer Out of Time,” and “Motion to Dismiss for Lack of Personal Jurisdiction” filed by Mr. McGrain;  “Motion to Set Aside Default Judgment” with “Affidavit Denying Personal Jurisdiction” filed by Mr. McGrain

August 11-Hearing on Mr. McGrain’s motion to set aside the default judgment

August 14-“Amended Motion to Set Aside Default Judgment” filed by Mr. McGrain with his “Affidavit Denying Personal Jurisdiction”

August 16-“Amended Motion to Set Aside Default Judgment” filed by Mr. McGrain with his “Affidavit Denying Personal Jurisdiction”

August 18-Hearing held on Mr. McGrain’s amended motion to set aside the default judgment;  Answer filed for Mr. McGrain

August 22-Order setting aside the default judgment issued, conditioned on payment of $500 in partial attorney’s fees

August 25-“Motion to Dismiss for Lack of Personal Jurisdiction” filed by Mr. McGrain with affidavit

October 5-Request for leave to withdraw by Mr. McGrain’s former counsel

October 6-“Motion for Entry of Order Denying Amended Motion to Set Aside Default Judgment” filed by Mr. Lovenduski;  entry of appearance made by Mr. McGrain’s current counsel

November 6-“Order and Judgment Denying Amended Motion to Set Aside Default Judgment” issued by the circuit court

November 7-“Amended Order and Judgment Denying Amended Motion to Set Aside Default Judgment” issued by the circuit court;  Notice of appeal filed by Mr. McGrain

STANDARD OF REVIEW

In reviewing a default judgment, we will sustain the trial court’s discretion unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.  Young v. Safe-Ride Servs., 23 S.W.3d 730, 732 (Mo.App. W.D.2000);  Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).   Because of this court’s distaste for default judgments, we subject the discretion of a trial court to deny a motion to set aside a default judgment to closer scrutiny than the discretion of a trial court to grant a motion to set aside, and, consequently, we are much more likely to interfere with the trial court’s decision when the motion to set aside the judgment has been denied.  Young, 23 S.W.3d at 732.

LEGAL ANALYSIS

We recognize that “a personal judgment rendered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally” and that “a defendant ‘is always free to ignore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding.’ ” Crouch v. Crouch, 641 S.W.2d 86, 90 (Mo. banc 1982) (quoting Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1982)). Historically, the alternate method of objecting to personal jurisdiction was to enter a “special appearance” that was limited to challenging personal jurisdiction.  State ex rel. White v. Marsh, 646 S.W.2d 357, 359 (Mo. banc 1983).   Any action taken inconsistent with the claim of want of jurisdiction, “some overt act constituting a general appearance, by virtue of which the defendant submits himself or itself to the jurisdiction of the court”, was deemed to be waiver of the defense.  State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, 66 (1956).

With the advent of the Civil Code of 1943, however, as well as the present Rules of Civil Procedure based on the code, the strict requirements for challenges to personal jurisdiction were relaxed, so that now a party has the ability to challenge personal jurisdiction in conjunction with other defenses.  State ex rel. Antoine v. Sanders, 724 S.W.2d 502, 503-04 (Mo. banc 1987).   Thus, not only is objecting by way of a “special appearance” no longer required, but it “serves no useful purpose.”  Marsh, 646 S.W.2d at 361.   Presently, Rule 55.27 1 addresses the defense of lack of personal jurisdiction.   The rule states, in pertinent part:

Every defense, in law or fact, to a claim in any pleading, ․ shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

* * *

(2) Lack of jurisdiction over the person;

* * *

A motion making any of these defenses shall be made:

(A) Within the time allowed for responding to the opposing party’s pleading, or

(B) If no responsive pleading is permitted, within thirty days after the service of the last pleading.

* * *

If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to the claim for relief.

Rule 55.27(a);  see F.A. Chapman v. Commerce Bank of St. Louis, 896 S.W.2d 85, 86 (Mo.App. E.D.1995).   Further, Rule 55.27(g)(1) provides, in relevant part:

A defense of lack of jurisdiction over the person ․ is waived (A) if omitted from a motion in the circumstances described in subsection (f) [which allows for consolidation of motions] or (B) if it is neither made by motion under this Rule nor included in a responsive pleading.

Although the present factual pattern would present an interesting question of whether Mr. McGrain waived the defense,2 we are not required to determine that issue.   The record is perfectly clear as to the justification chosen by the circuit court in exercising in personam jurisdiction over Mr. McGrain when it entered the default judgment on July 21, 2000:

THE COURT:  So what we have pending before us this morning is the Motion for Default Judgment?

MR. HICKLIN [counsel for Mr. Lovenduski]:  Yes.

THE COURT:  Do you have evidence?

MR. HICKLIN:  Judge, with the affidavit in support of it that I filed with my motion, which I would offer to The Court.

THE COURT:  What’s the basis of the jurisdiction, Mr. Hicklin?

MR. HICKLIN:  That the transaction occurred in the State of Missouri.   The defendant is a nonresident who resides in the State of New York, but the jurisdiction is because the transaction occurred in the State of Missouri.

Once the document was marked as Plaintiff’s Exhibit Number 1, counsel for Mr. McGrain noted that the affidavit was signed in Monroe County, New York, and the court admitted the exhibit.   Immediately thereafter, the following was said:

THE COURT:  Do you have any other evidence Mr. Hicklin?

MR. HICKLIN:  Your Honor, with no pleading, then all of the allegations of the petition are deemed admitted, including the jurisdictional allegations.

THE COURT:  The Court finds that all allegations of the Plaintiff’s Petition on Loan/Breach of Contract filed April the 20th, 2000, are deemed admitted.   The Court’s received in evidence the Affidavit in Support of Default Judgment, Plaintiff’s Exhibit Number 1.

And based upon the evidence, judgment is entered for plaintiff and against defendant․

Thus, prior to entering the Default Judgment, consent by waiver was not considered as a basis for personal jurisdiction over Mr. McGrain.   Rather, it is unmistakably clear that the circuit court based its determination on long-arm jurisdiction, which brings us to Mr. McGrain’s first point on appeal.   Quite simply, he argues that the circuit court lacked personal jurisdiction.   He suggests that the trial court lacked personal jurisdiction over him because Mr. Lovenduski’s petition and affidavit failed to establish that Mr. McGrain had contracted in Missouri or that he had sufficient minimum contacts with Missouri, and because Mr. McGrain, a New York resident who had been in Missouri only once for a meeting unrelated to the lawsuit, signed an affidavit which showed that he had not engaged in any activity enumerated in § 506.500.

Determining whether the assertion of personal jurisdiction is proper requires both a determination of whether the action arose out of an activity covered by § 506.500 or Rule 54.06 and whether there were sufficient minimum contacts with the State of Missouri to satisfy due process requirements.   See Angoff v. Marion A. Allen, Inc., 39 S.W.3d 483, 486 (Mo. banc 2001).   A court may consider affidavits, oral testimony, or depositions.  Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318 (Mo. banc 2000).   The only evidence presented here was an affidavit.   A trial court considering affidavits may believe or disbelieve any statement contained therein, and it has discretion in making factual determinations.  Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc 1997) (quoting Quelle Quiche v. Roland Glass Foods, 926 S.W.2d 211, 213 (Mo.App. E.D.1996)).

Unfortunately for Mr. Lovenduski, “[t]he proper function of an affidavit is to state facts, not conclusions.”  Conway, 12 S.W.3d at 318.   Whether the transaction occurred in Missouri is a conclusion, and a legal one at that.   Although a contract wholly performed in Missouri might have been sufficient to have conferred personal jurisdiction, see State ex rel. Metal Serv. Ctr. of Ga., Inc. v. Gaertner, 677 S.W.2d 325, 327-28 (Mo. banc 1984), the affidavit did not contain sufficient detailed facts for this court to conclude that the “transaction” falls within one of the subsections of either § 506.500 or Rule 54.06.   The record does not suggest beyond the nebulous statements of the petition and Mr. Lovenduski’s affidavit what transaction occurred in Missouri, the nature of the transaction that occurred, when the transaction occurred, or how Mr. McGrain participated in the transaction.   Even at oral argument, counsel for the parties were unable to elaborate, so the court continues to wonder.

The determination of the jurisdictional issue is for the trial court in the first instance, but the sufficiency of the evidence to make a prima facie showing that the trial court may exercise personal jurisdiction is a question of law, which we review independently on appeal.  Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32 S.W.3d 592, 600 (Mo.App. E.D.2000).   Clearly, with so many unanswered questions, Mr. Lovenduski’s bare assertion that the transaction occurred in the state, and nothing more, was insufficient for the court to determine that it could exercise long-arm jurisdiction.  Section 506.500 provides, in relevant part:

1.  Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state;

(3) The commission of a tortious act within this state;

(4) The ownership, use, or possession of any real estate situated in this state;

(5) The contracting to insure any person, property or risk located within this state at the time of contracting;

(6) Engaging in an act of sexual intercourse within this state with the mother of a child on or near the probable period of conception of that child.

* * *

3. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

Rule 54.06 contains substantially the same provisions.

“To demonstrate that the action arose out of an activity covered by this statute, a plaintiff must make a prima facie showing of the validity of its claim.”  Conway, 12 S.W.3d at 318.   Although not required to prove all of the elements that form the basis of the defendant’s liability, a plaintiff must show that the acts contemplated by the statute took place.   Id. Here, Mr. Lovenduski has made no showing whatsoever that the acts contemplated by the statute took place.   Based on our review of the transcript at the hearing on the Motion for Default Judgment, quoted supra, we are left with the impression that the court determined that personal jurisdiction existed because the petition alleged and the Affidavit swore that the “transaction occurred” in Missouri.

The statute provides that long-arm jurisdiction exists due to “(1) The transaction of any business within this state;  [or] (2) The making of any contract within this state.” § 506.500.1, RSMo 2000;  see Rule 54.06.   While both subsections read together might be very loosely translated to mean that long-arm jurisdiction exists where a transaction occurs in the State of Missouri, Mr. Lovenduski had the burden of establishing long-arm jurisdiction by showing that Mr. McGrain engaged in an activity contemplated by the statute.   Because it was not presented with such intricate facts, see Farris v. Boyke, 936 S.W.2d 197, 203 (Mo.App. S.D.1996), we cannot see how the circuit court could have concluded that the long-arm statute was satisfied.

Additionally, the limits imposed by the Fourteenth Amendment further contained the circuit court’s ability to exercise personal jurisdiction.   Due process requires that the defendant have minimum contacts with the state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.  Conway, 12 S.W.3d at 318 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).   Missouri courts consider five factors when ascertaining whether there are sufficient minimum contacts by the defendant:  “1) the nature and quality of the contact;  2) the quantity of those contacts;  3) the relationship of the cause of action to those contacts;  4) the interest of Missouri in providing a forum for its residents;  and 5) the convenience or inconvenience to the parties.”  Conway, 12 S.W.3d at 318.   Again, this court is left to guess as to any of the five factors.   We are not inclined to engage in speculation as to how the lower court considered any of these factors because the record does not reasonably suggest the nature and quality of Mr. McGrain’s contact.   Thus, not only does the record fail to establish that the suit arose out of an activity enumerated in § 506.500 or Rule 54.06, but it also failed to show that there are sufficient minimum contacts to satisfy due process.

Therefore, the record contains insufficient information for this court to evaluate the propriety of the circuit court’s exercise of personal jurisdiction over Mr. McGrain.

CONCLUSION

For the foregoing reasons, we are unable to determine whether the trial court properly exercised personal jurisdiction over Mr. McGrain.   Accordingly, the decision of the trial court is reversed and remanded for further proceedings consistent with this opinion.   We direct the trial court to determine whether there are sufficient minimum contacts with Missouri for the court to acquire personal jurisdiction over Mr. McGrain.   The trial court is also directed to liberally grant leave to amend the petition so that Mr. Lovenduski will be allowed to address the concerns raised in regard to § 506.500 and Rule 54.06.   Rule 55.33(a).

FOOTNOTES

1.   All rule references are to Missouri Rules of Civil Procedure (2001) unless otherwise indicated.

2.   Compare Sola v. Bidwell, 980 S.W.2d 60, 65 (Mo.App. W.D.1998) ( “when [the defendant] filed his entry of appearance, he became a participant in the case, free to contest personal jurisdiction.   As a participant, he was bound by the Rules of Civil Procedure, which require personal jurisdiction objections to be lodged within the time allowed for a responsive pleading․ [The defendant] did not file his motion challenging the court’s personal jurisdiction within the time provided by the rules.   Therefore, he waived any challenge he may have had to the court’s jurisdiction over his person.”) with Sanders, 724 S.W.2d at 504 (“The general rule, however, remains in force.   The challenge to venue must be made at the first opportunity, and will be waived by taking steps relating to the merits of the case before the objection to venue is presented.”) (citations omitted) (noting that “the defenses set out in subparagraph (2), (3), (4) and (5) of Rule 55.27(a) are of essentially the same quality and subject to the same legal principles.”)

NEWTON, Judge.

HAROLD L. LOWENSTEIN, Judge and JAMES M. SMART, Jr., Judge, concur.

ARK MILLER, LLC, et al., Plaintiffs, v. DURHAM GROUP, LTD., et al., Defendants.

United States District Court, N.D. California.

December 16, 2019.

Editors Note
Applicable Law: 28 U.S.C. § 1332
Cause: 28 U.S.C. § 1332 Diversity – Other Contract
Nature of Suit: 190 Contract: Other
Source: PACER


Attorney(s) appearing for the Case

Park Miller, LLC, a Delaware limited liability company, Henry S Lawson, an individual and co-trustee of the Lawson Charitable Remainder Unitrust and co-trustee of the Lawson Family Trust, Marcia Lawson, an individual and co-trustee of the Lawson Charitable Remainder Unitrust and co-trustee of the Lawson Family Trust, Lawson Land, Inc., a California corporation, Edward Miner, an individual and trustee of the Miner 2003 Living Trust, Edward Miner Separate Property, James Combs, an individual and co-trustee of the James and Dorothy Combs Family Living Trust, Dorothy Combs, an individual and co-trustee of the James and Dorothy Combs Family Living Trust, Suzanne B. Combs, an individual and co-trustee of the Gregory M. and Suzanne B. Combs Family Living Trust & Gregory M. Combs, an individual and co-trustee of the Gregory M. and Suzanne B. Combs Family Living Trust, Plaintiffs, represented by Alexandrea Marie Tomp , Bowles and Verna & Richard T. Bowles , Bowles & Verna LLP.

Roger E. Choplin, an individual and co-trustee of the Roger E. Choplin and Carolyn J. Mone Revocable Trust & Carolyn J. Mone, an individual and co-trustee of the Roger E. Choplin and Carolyn J. Mone Revocable Trust, Plaintiffs, represented by Richard T. Bowles , Bowles & Verna LLP.

Durham Group, Ltd., a New York Corporation, Durham Commercial Capital Corp., a New York Corporation, Maasai Holdings LLC, a New York limited liability company, First Austin Funding Corp., a New York corporation & Craig McGrain, Defendants, represented by June D. Coleman , Carlson & Messer LLP.

 


ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FOR FAILURE TO STATE A CLAIM

Re: Dkt. No. 13

WILLIAM H. ORRICK, District Judge.

INTRODUCTION

Plaintiff Park Miller LLC (“Miller”), a wealth advisory firm, advised its clients to invest in defendant Durham Group, Ltd. (“DGL”). Multiple promissory notes were executed between those clients and DGL. In November 2018, DGL defaulted on the promissory notes, for which the plaintiff clients (“the contracting plaintiffs”) bring breach of contract claims.1 The plaintiffs name DGL, Craig McGrain, the President and owner of DGL, and other allegedly related corporations owned by McGrain (Durham Commercial Capital Corp. (“DCC”), First Austin Funding Corp. (“First Austin”), and Maasai Holdings LLC (“Maasai Holdings”)) as defendants that engaged in fraud by misrepresenting and concealing the financial status of DGL. Miller contends that these fraudulent actions also interfered with its business relationship with its clients.

Defendants concede that the breach of contract claims against DGL and DCC state plausible causes of actions. The remaining defendants seek dismissal for lack of personal jurisdiction and, failing that, dismissal of the breach of contract claims as to them. All defendants move to dismiss the fraud claims. I agree that plaintiffs have not sufficiently alleged personal jurisdiction over McGrain, First Austin and Maasai Holdings and have not met Federal Rule of Civil Procedure 9(b)’s requirement to state fraud claims with particularity. I GRANT defendants’ motion with leave to amend.

BACKGROUND

I. PROCEDURAL BACKGROUND

On July 19, 2019, plaintiffs filed a complaint bringing multiple breach of contract claims and several claims based on fraud and misrepresentation. Complaint (“Compl.”) [Dkt. No. 1]. On September 25, 2019, defendants moved to dismiss the Complaint for lack of personal jurisdiction and for failure to state a claim, to which plaintiffs responded with both an opposition and a First Amended Complaint (“FAC”). Plaintiffs argue that the FAC adds more allegations about personal jurisdiction, particularly regarding the alter ego theory, and contend that the FAC moots defendants’ arguments on failure to state a claim. Oppo. 1.

In their reply, defendants request that I address their motion to dismiss despite the filing of the FAC, arguing that the FAC does not address the arguments made in the motion, and that the arguments continue to apply to the two additional plaintiffs added in the FAC. Reply [Dkt. No. 20] 3 n.2. I heard argument on November 13, 2019.

II. FACTUAL BACKGROUND

A. The Parties

Miller is incorporated in California and is engaged in comprehensive planning, investment management and other related services. Complaint (“Compl.”) [Dkt. No. 1] ¶ 1. The contracting plaintiffs reside in California or, in Lawson Land Inc.’s case, is incorporated in California. Id. ¶¶ 2-9; see also First Amended Complaint (“FAC”) [Dkt. No. 19] ¶ 10-11 (adding two more clients of Park Miller LLC as plaintiffs). All corporate defendants are incorporated in New York and McGrain is a New York resident. Id. ¶¶ 12-16

DCC is a factoring business, which purchases invoices owed to businesses in return for a percentage of the invoiced amounts. Declaration of Craig McGrain (“McGrain Decl.”) [Dkt. No. 13-1] ¶ 2. DGL borrows money through promissory notes and raises capital to fund DCC’s factoring business. Id. First Austin sells paper products. Maasai Holdings is a debt buyer. Id. ¶¶ 5-6. Plaintiffs allege that McGrain is the President of DGL, the Chief Executive Officer of DCC, and is in control of or owns First Austin and Maasai Holdings. Id. ¶¶ 12-16.

B. The Promissory Notes

Miller alleges that defendants induced it to advise its clients, the contracting plaintiffs, to invest in DGL by intentionally misrepresenting DGL’s financial status and concealing crucial information. FAC ¶ 104. Each of the contracting plaintiffs entered into promissory notes with DGL to invest millions of dollars to fund DCC’s factoring business. FAC ¶¶ 30-50; see also id. FAC, Exs. A-I (copies of the promissory notes between each contracting plaintiff and DGL). Each contracting plaintiff brings breach of contract claims against all defendants for defaulting on the promissory notes and failing to take action in order to cure the default. FAC ¶¶ 62-101 (causes of action (“COAs”) 1-5). As to these breach of contract claims, defendants move to dismiss the claims against all defendants except DGL/DCC, arguing that the other defendants are not parties to the underlying promissory notes. Mot. 1.2

C. Defendants’ Fraudulent Acts and Misrepresentation

Beginning no later than the first quarter of 2018, plaintiffs allege that defendants knew or should have known that their financial status had detrimentally changed because one of the entities to which they provided $1,797,000 was in default. FAC ¶ 51. Defendants identify this entity as 1-800 Solar in their reply. See Reply in Support of Motion to Dismiss (“Reply”) [Dkt. No. 20] 7. Plaintiffs contend that in April 2018, defendants knew or should have known that 1-800 Solar also filed for bankruptcy. FAC ¶ 51. Despite this knowledge, the financial statements of DGL and DCC emailed to Miller between January 2018 and November 2018 continued to reflect that the receivables of this bankrupt entity were active assets. Id. ¶ 52.

Plaintiffs assert that this false reporting prevented Miller from realizing the true financial condition of DGL and DCC. FAC ¶ 53. They contend that since the beginning of the business relationship between Miller, McGrain and DGL/DCC in 2010, “McGrain would customarily notify Park Miller of any and all changes to the Durham Entities’ financial condition,” and on “two prior occasions, McGrain timely notified Park Miller of events that compromised the Durham Entities’ financial security.” Id. ¶ 54.

Plaintiffs assert that this “customary business practice” caused Miller and its clients to rely on “full and accurate disclosure” of DGL/DCC’s financial status. FAC ¶ 55. Yet they claim that McGrain “failed to disclose” DGL/DCC’s true financial status,” “despite the knowledge that the [DGL/DCC] financial status had materially changed.” Id. McGrain allegedly knew that the financial statements of DGL/DCC did not accurately depict its true financial status and still permitted them to be circulated to plaintiffs. Id. Until plaintiffs discovered the inaccurate representations in November 2018, they assert that McGrain had provided evasive and deceptive answers about DGL’s and DCC’s financial situation during telephone calls with John Miller. Id. ¶ 56. They allege that in reliance on these misrepresentations and nondisclosures, Miller facilitated at least two additional promissory notes between its clients and DGL. See id. ¶ 58 (identifying contracting plaintiff Lawson Land, Inc. and another client who is not named as a plaintiff).

Plaintiffs claim that the misrepresentations caused contracting plaintiffs to delay efforts to collect from DGL earlier, causing them financial harm. Id. ¶ 60. They also contend that the misrepresentation and nondisclosures caused Miller to delay looking into the financial status of the entities beyond the allegedly false financial records provided to them. Id. ¶ 61. As a result, Miller allegedly lost clients and fees and suffered severe harm to its reputation as a wealth advisory firm. Id.

Based on these allegations, all plaintiffs bring fraud claims against all defendants. FAC ¶¶ 102-138 (Cause of Action [“COA”] 6 for fraud/intentional misrepresentation in under Civ. Code § 1572; COA 7 for fraudulent deceit under Cal. Civ. Code §§ 1709-1710; COA 8-9 for negligence and negligent misrepresentation). Miller also brings two claims against all defendants based on the clients and money it lost due to defendants’ fraud. FAC ¶¶ 139-154 (COA 10 for intentional interference with contractual relations; COA 11 for negligent interference with prospective economic relations).

LEGAL STANDARD

I. RULE 12(B)(6): MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss if a claim fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the claimant must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a claim must be supported by facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

Under Federal Rule of Civil Procedure 9(b), a party must “state with particularity the circumstances constituting fraud or mistake,” including “the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks omitted). However, “Rule 9(b) requires only that the circumstances of fraud be stated with particularity; other facts may be pleaded generally, or in accordance with Rule 8.” United States ex rel. Lee v. Corinthian Colls., 655 F.3d 984, 992 (9th Cir. 2011). In deciding a motion to dismiss for failure to state a claim, the court accepts all of the factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). But the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

II. RULE 12(B)(2): MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The plaintiff then bears the burden of demonstrating that jurisdiction exists. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). The plaintiff “need only demonstrate facts that if true would support jurisdiction over the defendant.” Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995); Fields v. Sedgwick Assoc. Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). “Although the plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted allegations in the complaint must be taken as true.” Schwarzenegger, 374 F.3d at 800 (citations omitted). Conflicts in the evidence must be resolved in the plaintiff’s favor. Id. “Where, as here, the motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. In such cases, we only inquire into whether [the plaintiff’s] pleadings and affidavits make a prima facie showing of personal jurisdiction.” Caruth v. International Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir. 1995) (internal punctuation and citation omitted).

Where, as here, there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies.” Core-Vent Corp. v. Novel Indus. AB, 11 F.3d 1482, 1484 (9th Cir. 1993) (citation omitted). “California’s long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution.” Id.; Cal. Civ. Proc. Code. § 410.10. “Because California’s long-arm jurisdictional statute is coextensive with federal due process requirements, the jurisdictional analyses under state law and federal due process are the same.” Schwarzenegger, 374 F.3d at 800-01.

“There are two types of personal jurisdiction: general and specific.” Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). “[G]eneral jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the word.” Schwarzenegger, 374 F.3d at 801. It exists where a nonresident defendant’s activities within a state are “substantial” or “continuous and systematic.” Data Disc., Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). Such contracts must “be of the sort that approximate physical presence.” Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000).

Specific jurisdiction arises when a defendant’s specific contacts with the forum give rise to the claim in question. Helicoptoros Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414-16 (1984). “A court exercises specific jurisdiction where the cause of action arises out of or has a substantial connection to the defendant’s conduct with the forum.” Glencore Grain Rotterdam BV v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002). The Ninth Circuit employs a three-part test to determine whether there is specific jurisdiction over a defendant:

(1) the non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1023 (9th Cir. 2017).

The first prong may be satisfied by “purposeful availment of the privilege of doing business in the forum; by purposeful direction of activities at the forum; or by some combination thereof.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006). In tort cases, courts typically inquire whether a defendant “purposefully directs his activities at the forum state, applying an `effects’ test that focuses on the forum in which the defendant’s actions were felt, whether or not the actions themselves occurred within the forum.” Id.3 In contrast, in contract cases, courts typically inquire whether a defendant “purposefully avails itself of the privilege of conducting activities or consummates a transaction in the forum, focusing on activities such as delivering goods or executing a contract.” Id. (citation and internal punctuation omitted).

With regard to the second prong, courts “measure this requirement in terms of `but for’ causation.” Bancroft & Masters, 223 F.3d at 1088. The plaintiff bears the burden of satisfying the first two prongs of the test. Schwarzenegger, 374 F.3d at 802. If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to “present a compelling case” that the exercise of jurisdiction would not be reasonable.” Id. If the plaintiff cannot satisfy either of the first two prongs, personal jurisdiction is not established in the forum state. Id.

DISCUSSION

Defendants make three arguments in their motion: (i) dismiss all fraud claims against all defendants for failure to state a claim; (ii) dismiss breach of contract claims against all defendants except DGL/DCC because they were not parties to the underlying promissory notes; (iii) and dismiss McGrain, Maasai Holdings and First Austin for lack of personal jurisdiction. Mot. 1. Essentially, defendants argue that only the breach of contract claims against DGL/DCC should move forward in the FAC. Id.4

I. FAILURE TO STATE FRAUD CLAIMS

Plaintiffs’ fraud claims are denominated as fraud (COA 6), fraudulent deceit (COA 7), negligence based on misrepresentations (COA 8), negligent misrepresentation (COA 9), intentional interference with contract (COA 10) and negligent interference with prospective economic relations (COA 11). COA 6 through 9 relate to alleged promissory fraud that occurred on the promissory notes between contracting plaintiffs and DGL, and COA 10 and 11 relate to the business relationships that were allegedly severed between Miller and its clients due to defendants’ interfering actions. To sufficiently allege these claims, plaintiffs must meet the heighted pleading standard under Rule 9(b) and state with particularity the circumstances constituting fraud.

A. Specificity of Fraud Claims

Defendants initially argued that the Complaint only alluded to false representations about financial health of DGL/DCC because it contained one conclusory paragraph. Mot. 20; Compl. ¶ 29 (“Within the last three years, Defendants materially misrepresented [DGL’s] financial status to Plaintiffs and hid crucial financial information from Plaintiffs both through verbal communications and through financial reports and presentations.”).

Plaintiffs argue that their FAC identifies with sufficient particularity the who, what, when, where and how of the misconduct. Oppo. 11. But defendants contend that the one alleged “misrepresentation” plaintiffs added in their FAC does not suffice. Reply 11. They assert that the one entity discussed in the FAC, identified as 1-800 Solar, did not owe the receivables that DCC was owed; those were owed by 1-800’s clients to DCC. Id. at 8, n.6. Accordingly, they claim that 1-800 Solar’s bankruptcy did not affect 1-800 Solar’s ability to pay DCC, and in turn did not impact contracting plaintiffs from collecting regular payments from DGL. Id. at 8.

Defendants claim that the monthly accounts receivable aging reports received by John Miller (and thus Miller) showed the $1.8 million 1-800 Solar receivables aging into default, establishing that DGL did inform plaintiffs about the 1-800 Solar receivables for months. Reply 8 (citing to McGrain Decl. ¶¶ 10-11). Defendants also point out that John Miller was given access to the “Durham computer system to review the accounts and any other financial information Mr. Miller desired when he visited the [DGL’s New York offices], about twice a year.” Reply 12; see also McGrain Decl. ¶ 11. Defendants conclude that plaintiffs had access to the relevant information, making their fraud allegations implausible.

Plaintiffs stated at the hearing that they do not have a problem with the defendants’ reply arguments being considered on this motion. But regardless of defendants’ explanation about 1-800 Solar, plaintiffs have not sufficiently pleaded a fraud claim with particularity in the FAC. Some of the crucial information that they rely on is found in their opposition or attached declarations, not in the FAC. For example, plaintiffs allege in the FAC that “one of the entities” to which defendants provided $1,797,000 was in default and filed for bankruptcy, FAC ¶ 51, but that alleged entity is not identified as 1-800 Solar prior to plaintiffs’ filing of the declarations accompanying the opposition. See Miller Decl. ¶ 13 (“Around $1,797,000 worth of receivables owed by a particular company known as 1-800 Solar were represented as good assets when in fact the company was in default and had filed for bankruptcy in April 2018. This meant that there was no chance of recovery on the 1-800 Solar assets, yet they continued to remain on the books as an asset.”).

At the hearing, plaintiffs also argued that when John Miller asked McGrain whether the receivables were any good, McGrain simply replied, “No they’re not.” This allegation does not appear in the FAC. The only allegation in the FAC generally states, “McGrain provided evasive and deceptive answers about DCC and DGL’s financial situation via telephone calls with John Miller.” FAC ¶ 56. The FAC asserts that Miller “discover[ed] [ ] the inaccurate representations in November 2018,” but it does not describe how John Miller learned that the 1-800 Solar receivables were in fact worthless and non-recoverable and why that fact would necessarily contradict what was depicted in the financial statements emailed to him. In short, the FAC does not sufficiently link how the circumstances surrounding 1-800 Solar constitute fraud. An amended complaint that addresses these deficiencies and collectively includes all relevant factual allegations will help clarify that plaintiffs’ fraud claims meet the level of particularity required by Rule 9(b). Defendants’ motion to dismiss the fraud claims is GRANTED with leave to amend.

1. Promissory Fraud Claims

Some of plaintiffs’ claims relate to the promissory fraud that occurred pertaining to the promissory notes between contracting plaintiffs and DGL. These include fraud/intentional misrepresentation, fraudulent deceit, and negligent misrepresentation. See FAC (COAs 6, 7 and 9). Defendants argue that these claims have been insufficiently alleged because plaintiffs only alleged mere nonperformance; there must be other factual allegations to adequately allege that a defendant knowingly made false promises without an intent to perform. See Sunnyside Development Co., LLC v. Opsys Ltd., No. C 05-0553 MHP, 2005 WL 1876106, *6 (N.D. Cal. Aug. 8, 2005). Defendants point out that the promissory notes that predated November 2018 received regular interest payments for years. Mot. 21; McGrain Decl. ¶ 11. They argue that these claims should be dismissed as to all defendants, including DGL, a party to the underlying promissory notes, because plaintiffs have not alleged that DGL entered into the promissory notes intending to breach. Mot. 22.

Plaintiffs allege that “[i]n reliance on these misrepresentations/nondisclosures, Park Miller facilitated at least two additional promissory notes between its clients and Durham,” including the 2018 promissory note with Lawson Land, Inc., one of the contracting plaintiffs and Miller’s client. FAC ¶ 58. This promissory note was executed on July 2, 2018, after the alleged April 2018 bankruptcy of 1-800 Solar. Id. ¶¶ 34, 51; see also id. ¶ 34 & Ex. C (copy of the 2018 promissory note with Lawson Land, Inc.). Therefore, plaintiffs contend that defendants “knew or should have known that DGL did not have the ability to comply with the terms of [this promissory note] and could not pay the Lawsons interest or the principal sum back.” Id. ¶ 59.

Assuming plaintiffs fix the deficiencies of their underlying fraud claims as discussed above, these allegations could be sufficient to show promissory fraud as to contracting plaintiff Lawson Land, Inc. But plaintiffs do not explain their promissory fraud claims concerning the other eight contracting plaintiffs, all of whom executed their promissory notes before the first quarter of 2018 (when plaintiffs claim defendants began their misrepresentations about 1-800 Solar). FAC ¶¶ 31, 33, 37, 38, 41, 44, 47, 48; see also id., Exs. A, B, D-I. Plaintiffs have not alleged facts surrounding their theory that DGL entered into these promissory notes knowing it could not perform on them.

2. Interference Claims

Miller also brings two interference claims sounding in fraud — intentional interference with business relations and negligent interference with prospective business relations. See FAC (COAs 10 and 11). It alleges that as a result of the misrepresentations and nondisclosures, Miller delayed looking into the financial status of the entities beyond the false records provided to it, which in turn caused it to lose clients and suffer harm to its reputation as a wealth advisory firm. FAC ¶ 61. This is the only allegation in the FAC that alludes to the interference claims.

Plaintiffs argue that they are not required to plead these claims with Rule 9(b) specificity. Oppo. 14. They rely on Oracle Am., Inc. v. TERiX Computer Co., Inc., No. 5:13-CV-03385-PSG, 2014 WL 31344, at *11 (N.D. Cal. Jan. 3, 2014) for the contention that “Rule 9(b) might apply to an interference claim presented entirely on [] fraudulent conduct or conduct sounding in fraud,” but it does not apply when an “interference claim relies on several instances of misconduct[.]” Id. Because Miller characterizes its interference claims as resting on both defendants’ misrepresentations and DGL’s failure to perform on the underlying promissory notes, it concludes that Rule 9(b) does not apply. Id. But this characterization of its interference claims is not clearly reflected in the FAC.

Even if Rule 9(b) does not apply, Miller has not alleged any “specific, intentional breaches of contract.” Heartland Payment Sys., Inc. v. Mercury Payment Sys., LLC, No. C 14-0437 CW, 2014 WL 5812294, at *8 (N.D. Cal. Nov. 7, 2014). For example, in Heartland, the plaintiff asserted that it “identified nearly thirty merchants who have left Heartland for Mercury within the last six months prior to filing the Complaint,” but admitted it does not know “why every merchant who leaves Heartland has chosen to do so,” and cannot know without discovery. Id. Nonetheless, the court still dismissed the interference claims because the plaintiff “[did] not allege that any of its contracts with any former merchant have actually been breached, much less breached because of interference by [the defendant].” Id. Here, Miller only generally alleges that it has “lost clients” but does not allege how many were lost and whether it was due to defendants’ actions. Miller has also not specifically alleged that any of its contracts have been breached or any prospective economic relations that have been lost.

For the reasons set forth above, defendants’ motion to dismiss the fraud claims is GRANTED with leave to amend.

II. FAILURE TO STATE BREACH OF CONTRACT CLAIMS

Defendants also seek to dismiss the breach of contract claims against all defendants except DGL and DCC, arguing that the other defendants are not parties to the underlying promissory notes at issue. Mot. 22. As discussed in the next section, this court lacks personal jurisdiction over McGrain, First Austin and Maasai Holdings. Defendants’ motion to dismiss the breach of contract claims as to McGrain, First Austin and Maasai Holdings is moot in light of my lack of jurisdiction.

III. LACK OF PERSONAL JURISDICTION OVER McGRAIN

Defendants seek to dismiss McGrain under Rule 12(b)(2) for lack of personal jurisdiction. Mot. 14. They claim that he does not have sufficient “continuous and systematic” contacts with California as a New York resident to confer general jurisdiction, and that he does not have sufficient involvement in the alleged conduct to establish specific jurisdiction. Mot. 14-15. Plaintiffs respond that: (i) specific personal jurisdiction exists over McGrain because he purposefully directed his business activities at California; (ii) the fiduciary shield doctrine does not insulate McGrain from personal jurisdiction because he committed intentional torts; and (iii) he acted as the alter ego of DCC or DGL, and therefore the entities’ contacts are applicable to him too. See Oppo. 6-9. Plaintiffs have not provided sufficient allegations in their FAC to support those arguments.

A. Specific Personal Jurisdiction

Plaintiffs argue that there is specific personal jurisdiction over McGrain because he “purposefully directed his business activities at California and has negotiated and consummated the transactions that require performance in California and gave rise to this suit.” Oppo. 6. To support this argument, plaintiffs cite the declaration by John Miller, which is attached to their opposition. Id.; Declaration of John Miller (“Miller Decl.”) [Dkt. No. 18-1].

First, plaintiffs assert that McGrain knew Miller was a California corporation, as reflected in their business interactions, and that many of its clients were California residents, as reflected in the promissory notes. Oppo. 2; Miller Decl. ¶¶ 3-7, Exs. A-C (email exchange between Miller and McGrain discussing time zone difference). McGrain signed at least three promissory notes between DGL and contracting plaintiffs and other Miller clients that specify performance in California. Oppo. 2; Miller Decl. ¶ 7, Exs. D-E (copies of promissory notes with California addresses which McGrain signed). Defendants admit that McGrain negotiated the terms and signed three promissory notes, but argue that those promissory notes were executed between October 2010 and May 2011, which is outside the relevant 2016-2018 time period of the alleged fraud and misrepresentation. Reply 5; Suppl. McGrain Decl. ¶ 14 (citing to FAC, Exs. A, D and H of promissory notes entered between October 2010 and May 2011). Defendants contend that only promissory notes entered between 2016 and 2018 are relevant to this case as those are the ones that give rise to the fraud/misrepresentation claims. Id.5

Second, plaintiffs argue that McGrain was involved with drafting the terms of at least one of the promissory notes between a Miller client who resides in California and DGL. Oppo. 6; Miller Decl. ¶ 8, Ex. F (email exchange between McGrain and Miller discussing changes to a promissory note). Defendants respond that McGrain admits to helping draft the terms of one promissory note, but clarify that none of the plaintiffs were a party to this promissory note and that it is not relevant to the issues in this case. Reply 5; Suppl. McGrain Decl. ¶ 14 (noting that the promissory note executed on August 25, 2017 did not involve any of the plaintiffs or the alleged fraud and misrepresentation claims in this case).

Third, plaintiffs state that McGrain was copied on virtually all communications between Miller and DGL/DCC. Oppo. 6; Miller Decl. ¶¶ 10, 12, Ex. H (copies of emails to Miller with attached financial reports, on which McGrain is also a recipient). Defendants respond that plaintiffs have put forth various correspondence, most of which falls outside the relevant time period or is a communication sent by someone other than McGrain. Reply 5, n.3. They contend that none of the correspondence addresses the specific contracts at issue in this case. Id.

Plaintiffs have not sufficiently alleged that McGrain’s acts purposefully availed him to California. Their arguments are in a declaration attached to its opposition, not in the FAC. Moreover, plaintiffs have not explained how McGrain’s activities arose out of or relate to the underlying fraud and misrepresentation claims in this case. They have not alleged how McGrain’s activities relate to the alleged misrepresentation in 2018 about 1-800 Solar and its effect on the financial health of DGL/DCC. Accordingly, they have not demonstrated that exercise of specific personal jurisdiction over McGrain is proper.

B. Fiduciary Shield Doctrine

Even if minimum contacts were established, defendants argue that the fiduciary shield doctrine insulates McGrain from personal jurisdiction. Mot. 18. Under the fiduciary shield doctrine, “a person’s mere association with a corporation that causes injury in the forum state is not sufficient in itself to permit that forum to assert jurisdiction over the person.” Davis v. Metro Prods., Inc., 885 F.2d 515, 520 (9th Cir. 1989). California state law, which governs all the causes of action in this case, explicitly recognizes the fiduciary shield doctrine. See Shearer v. Superior Court, 70 Cal.App.3d 424, 430 (1977). Thus, defendants argue, the court “cannot impute personal jurisdiction over McGrain simply because he is an officer or agent of DGL or DCC (or any of the other corporations).” Mot. 18.

There are exceptions to the fiduciary shield doctrine. One of them is for intentional tortious acts committed by an officer or owner. See Seagate v. A.J. Kogyo Co., 219 Cal.App.3d 696, 703 (1990). For example, in Taylor-Rush v. Multitech Corp., 217 Cal.App.3d 103, 117-18 (1990), the court held the fiduciary shield doctrine did not insulate New York corporate officers and directors from personal jurisdiction where defendants made fraudulent representations purposely directed to the plaintiff, a California resident, because they were “the primary participants in negotiating and executing” the contracts with plaintiff. But unlike Taylor-Rush, defendants argue, McGrain did not make any representations to the contracting plaintiffs or any misrepresentations to Miller. Mot. 19.

Plaintiffs argue that the tortious activity exception to the fiduciary shield doctrine applies because “McGrain failed to disclose the material changes in the financial conditions of DGL and DCC to Park Miller LLC and the other plaintiffs with the intent to induce the plaintiffs to invest more money in DGL and DCC and refrain from taking action to recover their investments.” Oppo. 7. Their support for this argument is that McGrain allegedly “permitted” inaccurate financial statements to be sent to Miller and was copied on each of these communications. Oppo. 7; FAC ¶ 55; Miller Decl. ¶ 12. Even if the financial information was inaccurate, simply being copied on an email does not show that McGrain himself took part in the tortious acts of the company. Plaintiffs conclusorily allege that McGrain failed to disclose the material changes in the “financial conditions of DGL and DCC” to Miller and other plaintiffs with “intent to induce the Plaintiffs to invest more money in DGL and DCC and refrain from taking action to recover their investments.” See FAC ¶ 57. But this bare allegation is not sufficient to trigger the tortious activity exception of the fiduciary shield doctrine. Plaintiffs fail to explain why the fiduciary shield doctrine does not insulate McGrain from the acts of DGL or DCC.

C. Alter Ego Theory

Alternatively, plaintiffs argue that there is personal jurisdiction over McGrain because he is the alter ego of DGL or DCC. Oppo. 8. To survive a motion to dismiss, a plaintiff asserting application of the alter ego doctrine to extend personal jurisdiction must “allege specifically both the elements of alter ego liability, as well as facts supporting each.” MH Pillars Ltd. v. Realini, No. 15-CV-1383-PJH, 2017 WL 916414, at *12 (N.D. Cal. Mar. 8, 2017) (internal citation omitted). The plaintiff must show “(1) that there is such unity of interest and ownership that the separate personalities or the two entities no longer exists, and [that] (2) that failure to disregard their separate identities would result in fraud or injustice.” Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1021 (9th Cir. 2017) (citing Ranza v. Nike, Inc., 793 F.3d 1059, 1073 (9th Cir. 2015)).

The “unity of interest” prong requires “a showing that the parent controls the subsidiary to such a degree as to render the latter the mere instrumentality of the former.” Ranza, 793 F.3d at 1073. (internal quotation marks and citations omitted). Courts generally consider nine factors in assessing whether the unity of interest prong of an alter ego relationship is satisfied:

(1) the commingling of funds and other assets of the entities, (2) the holding out by one entity that it is liable for the debts of the other, (3) identical equitable ownership of the entities, (4) use of the same offices and employees, (5) use of one as a mere shell or conduit for the affairs of the other, (6) inadequate capitalization, (7) disregard of corporate formalities, (8) lack of segregation of corporate records, and (9) identical directors and officers.Sandoval v. Ali, 34 F.Supp.3d 1031, 1040 (N.D. Cal. 2014) (citation omitted). While a court need not find that every factor is present, Updateme Inc. v. Axel Springer SE, No. 17-CV-05054-SI, 2018 WL 1184797, at *10 (N.D. Cal. Mar. 7, 2018), the Ninth Circuit has specifically found that “[t]otal ownership and shared management personnel are alone insufficient to establish the requisite level of control.” Ranza, 793 F.3d at 1073. A parent’s involvement in “macro-management issues” does not satisfy this element; the plaintiff must show that the parent directs the subsidiary’s “day-to-day operations” and that the “entities failed to observe their separate corporate formalities.” Id. at 1074-1075.

Plaintiffs argue that McGrain is the alter ego of DCC and DGL because he has an ownership interest in both entities, uses the same email addresses from both entities, and treats the assets of DGL and DCC as interchangeable. FAC ¶¶ 25-26. As defendants correctly point out, the intermingling of assets between DGL and DCC might support an alter ego theory between DGL and DCC but does not provide allegations of an alter ego theory involving McGrain. Reply 13. Plaintiffs have failed to show that McGrain was acting as the alter ego of DGL and DCC such that personal jurisdiction over McGrain would be appropriate under the alter ego theory.

Altogether, plaintiffs have failed to: (i) sufficiently plead specific personal jurisdiction over McGrain because they do not allege how any of his contacts with California arise out of or relate to the underlying claims; (ii) even if minimum contacts were established, plaintiffs do not allege why the fiduciary shield doctrine should not insulate McGrain from personal jurisdiction; and (iii) plaintiffs have not alleged that McGrain is the alter ego of DGL or DCC. I GRANT defendants’ motion to dismiss McGrain for lack of personal jurisdiction.

IV. LACK OF PERSONAL JURISDICTION OVER FIRST AUSTIN AND MAASAI HOLDINGS

Defendants also seek to dismiss First Austin and Maasai Holdings for lack of personal jurisdiction. Mot. 12-14. In opposition, plaintiffs argue that personal jurisdiction over First Austin and Maasai Holdings is proper under the alter ego theory. Oppo. 8-9. But they fail to sufficiently allege both elements of alter ego liability, i.e., that a unity of interest exists between these two entities and DGL/DCC, and that the failure to disregard their separate identities would result in fraud or injustice. See Ranza, 793 F.3d at 1073.

A. First Austin

Plaintiffs argue that First Austin is subject to personal jurisdiction in California because it was acting as the alter ego of DGL and DCC. Oppo. 8. In their original Complaint, plaintiffs alleged that McGrain, who is President of DGL and CEO of DCC, also controls and has an ownership interest in First Austin. Oppo. 8; Compl. ¶ 14; FAC ¶ 16. In the FAC, plaintiffs added an allegation that First Austin mingled its assets with DCC when it secured an interest in DCC’s assets by buying a line of credit owed by DCC to its bank, Crestmark Bank. Id. (citing FAC ¶¶ 25-29). Accordingly, plaintiffs allege that First Austin “now holds the primary security interest in all DCC’s assets” and DGL “has a subordinated claim to [DCC’s] assets.” FAC ¶ 27. Plaintiffs also point to First Austin’s website, durhamltd.com, and the fact that First Austin’s address and phone number are the same as DCC and DGL as evidence that the entities act as one. Declaration of Stuart Park Decl. (“Park Decl.”), Ex. C (screenshot of the durhamltd.com website).

Defendants counter that this is insufficient to show general or specific jurisdiction over First Austin. First, defendants argue that the mere fact that McGrain has an ownership interest in DCC, DGL and First Austin is not enough to confer jurisdiction over First Austin. Mot. 12. Second, defendants contend that plaintiffs’ new allegation regarding the mingling of assets between First Austin and DCC does not necessarily show that DCC or DGL have “fraudulently transferred its assets to First Austin to wrongfully underfund the company.” Reply 10. Instead, defendants clarify, First Austin purchased DCC’s line of credit debt from Crestmark Bank in March 2019, “well after the time period in question.”. Supplemental Declaration of Craig McGrain (“Suppl. McGrain Decl.”) [Dkt. No. 20-1] ¶ 7. Defendants further add that after First Austin purchased DCC’s line of credit debt, “First Austin was in no better security position than Crestmark had been.” Id. Third, defendants contend that a review of First Austin’s website, durhamltd.com, confirms that First Austin dba Durham Ltd. sells paper products and that First Austin is not DCC or DGL, nor did it have any relation to the promissory notes at issue in this case. Reply 10-11. They explain that First Austin shares an address and phone number with DCC and DGL because it subleases space to DCC and DGL, and point out that plaintiffs have not provided a case in which this is sufficient to confer personal jurisdiction. Id. at 11. Defendants assert that First Austin is a “separate business entity” that “has maintained corporate formalities required under New York law,” and “maintains its own, separate bank accounts; and files its own, separate tax returns.” Suppl. McGrain Decl. ¶ 7.

Plaintiffs’ allegations that First Austin is the alter ego of DCC and DGL are insufficient, even without consideration of the purported explanations offered by defendants in reply and its declarations. It is not clear how the allegation that First Austin bought a line of credit debt owed by DCC demonstrates that DCC or DGL fraudulently transferred its assets to First Austin to wrongfully underfund the company. Plaintiffs’ only other allegations are that McGrain has an ownership in both First Austin and DGL/DCC, and that the two entities share contact information. But the Ninth Circuit has found that “[t]otal ownership and shared management personnel are alone insufficient to establish the requisite level of control.” Ranza v. Nike, Inc., 793 F.3d 1059, 1073 (9th Cir. 2015). Even if these were enough to establish a unity of interest, plaintiffs are required to “allege specifically both of the elements of alter ego liability, as well as facts supporting each;” the FAC does not state any inequitable result that would result from respecting the corporate form of these separate entities. Sandoval, 34 F. Supp. 3d at 1040 (citation omitted). Plaintiffs have not sufficiently alleged that this court can exercise personal jurisdiction over First Austin based on an alter ego theory.

B. Maasai Holdings

In their FAC, plaintiffs add allegations that Maasai Holdings is owned by McGrain and shares the same address as DCC. FAC ¶ 29. They further assert that Maasai was created “in order to hold the inactive assets” of DCC and DGL and that the DCC and DGL “financial statements reflect that one or more loans were owed to it by Maasai.” Id.

Defendants counter that Maasai is a “debt buyer” and that Maasai “had no involvement in any of [the] loan agreements or the factoring business” at issue in this case or any activities in California. Mot. 13-14. They state that Maasai Holdings is a “separate business entity” that “has maintained business formalities required under New York law,” and has “its own separate bank accounts,” and accounting records. Suppl. McGrain Decl. ¶ 8.

Plaintiffs have failed to plausibly allege that Maasai Holdings is an alter ego of DCC and DGL. A conclusory allegation that plaintiffs are “informed and believe” that Maasai “was created in order to hold the inactive assets” of DGL and DCC is insufficient without supporting factual allegations. In addition, as stated above with respect to First Austin, total ownership and shared address is not enough to show unity of interest. Ranza, 793 F.3d at 1073. Plaintiffs have only alleged facts as to one of the nine unity factors; failure to address the other factors strongly weighs against a finding that DCC or DGL’s contacts should be imputed to Maasai Holdings. See, e.g., Stewart v. Screen Gems-EMI Music, Inc., 81 F.Supp.3d 938, 955 (N.D. Cal. 2015) (unaddressed factors weigh against finding of alter ego status); Corcoran v. CVS Health Corp., 169 F.Supp.3d 970, 984 (N.D. Cal. 2016) (finding plaintiffs only alleged facts as to identical ownership, same offices, and identical directors, and failure to address other factors weighed against finding alter ego status). Plaintiffs have also not alleged any inequitable result in support of alter ego liability. They have not demonstrated that this court can exercise personal jurisdiction over Maasai Holdings.

McGrain, First Austin, and Maasai Holdings are DISMISSED for lack of personal jurisdiction. Plaintiffs may amend their complaint to add sufficient allegations that would confer jurisdiction over these defendants. Plaintiffs request for jurisdictional discovery is denied at this stage but may be renewed depending on any added allegations in a second amended complaint.

CONCLUSION

First Austin, Maasai Holdings, and McGrain are DISMISSED for lack of personal jurisdiction. Defendants’ motion to dismiss breach of contract claims against all defendants except DGL and DCC is GRANTED for failure to state a claim. Defendants’ motion to dismiss fraud claims against all defendants is GRANTED for failure to state a claim. Given the upcoming holidays, plaintiffs are given thirty days from the date below to amend.

IT IS SO ORDERED.

FootNotes

1. The contracting plaintiffs are Henry S. Lawson, Marcia Lawson, Lawson Land, Inc., Edward Miner, James Combs, Dorothy Combs, Gregory Combs and Suzanne Combs, Roger E. Choplin and Carolyn J. Mone and various trusts of which they are co-trustees.

2. At the hearing, defendants clarified that they are not seeking to dismiss the breach of contract claim against DCC given that they do not seek to parse out DGL and DCC as separate entities. See Transcript of Proceedings Held on November 13, 2019 (“Transcript”) [Dkt. No. 23] 10:12-23.

3. However, as the Supreme Court reemphasized in Walden v. Fiore, 571 U.S. 277, 285 (2014) the “effects” “analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”

4. Defendants say that this case is really about “the unfortunate circumstances of a law firm and a doctor that deceived [DCC] and their own clients, stealing millions of dollars, and leaving DCC and Plaintiffs facing the losses from the law firm’s and the doctor’s criminal and unethical conduct.” Mot. 1-2. DGL ultimately breached the promissory notes with Miller’s clients because of this alleged illegal activity. Id. at 2. Defendants argue Miller and the contracting plaintiffs attempt to make this a bigger case, involving parties that have no contact with California and its residents and who was not involved in DCC’s factoring business. Id. at 8. This is why defendants are not seeking dismissal of the breach of contract claims as to DGL and DCC.

5. In their original Complaint, plaintiffs alleged that the misrepresentation occurred “within the last three years.” Compl. ¶ 29. But the FAC now alleged that it occurred in 2018, given the circumstances around 1-800 Solar. FAC ¶ 51. Given that the FAC was filed at the time of the opposition, it appears that the relevant time period now is 2018, not between 2016 and 2018. Regardless, defendants’ argument is still applicable as the other promissory notes were executed well before 2018.

Tips for Youth Coaches by Craig McGrain

November 28, 2011

Outside of my professional role as President of Durham Funding, I find it important to allot my time so that I can give back to my community. Currently, I am youth sports coach for local hockey, lacrosse, and tennis teams, and I greatly enjoy the time I spend with these children.

Serving the community as a youth sports coach helps area children progress physically and mentally, learn good sportsmanship qualities, gain respect, and increase their physical activity levels. I have compiled a short list of tips for coaches who work with youth teams in any sport.

1. Always be patient. Working with young children can be especially trying, but a lot can be accomplished if the coach maintains a tolerant attitude.

2. Clearly define your role as the leader. This means that the coach must be prepared for every minute of practice and have a strategy for when things get off track.

3. Stay consistent in your coaching and discipline technique. Children respond best when they know what to do and what not to do. Consistency is the key in this approach.

4. Be a motivator. While all youth athletes want to win, the necessary hours of practice can sometimes take its toll and provoke lackluster activity. The coach’s role must always include a lively, confident persona. It will rub off on the players.

5. Pick your battles. Anyone who regularly works with children knows that, sometimes, there is no way to win. When a coach runs into trouble during practice, he or she should take a genuine look at all the options and consider the best interests of the youth involved.

6. Involve the parents. Parents can be a great help for several different reasons. They can provide refreshments as well as assist with coaching duties. Plus, youth athletes are usually more enthusiastic about the sport if their parents are engaged as well.

While coaching a youth sports team involves several unique scenarios and circumstances, this list is meant as a brief overview of the fundamental aspects required of a youth sports coach.

Howard

Craig Aka Craig L. Mcgrain sold 3340 Saxton Rd to Shc Management LLC for $300,000 on Nov. 8.

https://www.stargazette.com/story/money/2020/02/03/chemung-schuyler-steuben-tioga-county-real-estate-sales/4504013002/

https://www.zillow.com/homedetails/3340-Saxton-Rd-Avoca-NY-14809/209319482_zpid/

https://opencorporates.com/companies/us_ny/5510898

Department of Justice
U.S. Attorney’s Office
District of Massachusetts

FOR IMMEDIATE RELEASE
Tuesday, May 9, 2017

Former Milton Auctioneer Sentenced for Defrauding Investors of $21 Million

BOSTON – A well-known auctioneer was sentenced today in federal court in Boston for defrauding more than 90 victims – many of whom were friends, business associates and sophisticated investors – of more than $21 million.

Acting United States Attorney William D. Weinreb said, “Mr. Flynn preyed upon friends and family, taking their hard earned money with promises of high returns. Instead, he violated their trust, and used their investments to perpetuate an elaborate Ponzi scheme, using the money for his own personal expenses including renovations to his Milton home.”

“Through sophisticated financial schemes, Mr. Flynn took advantage of a wide array of victims, cheating them out of millions of dollars,”

said Harold H. Shaw, Special Agent in Charge of the Federal Bureau of Investigation, Boston Field Division.

“This case highlights the FBI’s commitment to aggressively following the money, so that financial fraudsters like Flynn – who are motivated by greed – are brought to justice and do not take advantage of the hard working men and women of our communities.”

Daniel J. Flynn III, 54, of Milton, was sentenced by U.S. District Court Senior Judge Rya W. Zobel to four years in prison, three years of supervised release and ordered to pay restitution. In February 2017, Flynn pleaded guilty to nine counts of wire fraud.

Beginning around 2007, Flynn and another individual started a real estate fund called the DJF Real Estate Opportunity Fund (“the Fund”).

The fund touted Flynn’s experience in real estate and boasted of an extraordinary rate of return on investments.

To convince potential investors that the Fund was solid, Flynn purported to own promissory notes worth millions of dollars and an apartment complex in Quincy.

In fact, Flynn fraudulently created the promissory notes and used the Quincy apartment complex to defraud investors.

Specifically, Flynn used the promissory notes to defraud investors by soliciting loans from investors to purchase or invest in a piece of distressed real estate.

In return, Flynn gave the investor a promissory note guaranteeing the investor of a 12 to 15 percent return.

Although Flynn did make payments to investors, as is typical in a Ponzi scheme, the money came from other victims – not real estate investment profits.

In total, Flynn defrauded about 60 individuals and entities of approximately $18.4 million.

In addition, Flynn used the Quincy apartment complex to defraud investors.

In 2005, Flynn purchased the property for $995,000.

Despite the fact that he already owned the property, Flynn caused the Fund to purchase the apartment complex for approximately $2.2 million.

Flynn then convinced some investors to loan him money to develop the units and convinced other investors to loan him money to purchase the property – despite the fact that he already owned it – and promised a 12 to 15 percent profit in return.

Flynn never repaid the investors.

Lastly, acting as a real estate broker, Flynn sold two properties in Dorchester generating $451,000 in profits, but never returned the proceeds to the property owner.

The property owner later died due to heart failure, but family members recalled that the victim and Flynn were involved in a heated argument about the money.

Acting U.S. Attorney Weinreb and FBI SAC Shaw made the announcement today. Assistant U.S. Attorney Neil J. Gallagher Jr. of Weinreb’s Economic Crimes Unit prosecuted the case.

Topic(s):
Financial Fraud
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