Editors Choice
Where Is He Now? Fraudster Francis Santa Was Sentenced to 88 Months for Conspiracy
Now Frank’s Out After Snitchin’ to Obtain a Lighter Sentence from Judge Kenneth Marra for Financial Institution Fraud, He’s Been In Touch with LIT.
United States v. Santa
(9:11-cr-80007)
District Court, S.D. Florida
JAN 11, 2011 | REPUBLISHED BY LIT: APR 22, 2022
Factual Proffer
On August 10, 2011, movant entered into the following factual proffer with the government used to support his guilty plea, which he thereafter acknowledged as correct during his change of plea hearing:
If this case had proceeded to trial, the Government would have established beyond a reasonable doubt that defendant FRANCIS SANTA did knowingly and willfully conspire with others to execute and cause the execution of a scheme and artifice to defraud financial institutions through the submission of fraudulent line of credit applications and related financial documents on behalf of unqualified borrowers.
In approximately 2003, FRANCIS SANTA began operating Palm Beach Business Consultant, Inc. (PBBC), a Florida corporation located in Boca Raton, Florida.
PBBC was in the business of preparing fraudulent loan package for individuals who lacked the income, credit scores and/or collateral to qualify for legitimate loans and/or lines of credit.
To induce clients to use PBBC’s services, SANTA represented that he had arrangements with numerous bankers who would push through fraudulent loans and/or lines of credit for PBBC clients. Indeed, SANTA claimed that he could get clients up to $300,000 in loans and/or lines of credit from these bankers.
He further represented that he had employees who were skilled at creating fraudulent loan and/or line of credit packages so that the PBBC clients would appear to be qualified, when in fact they were not.
To take advantage of SANTA’S services, the clients were required to pay SANTA fees ranging from $12,500 to $25,000.
The fees were paid up- front or after the loan and/or line of credit was funded by the bank.
SANTA hired several employees who were responsible for preparing the fraudulent loan and/or line of credit application packages for PBBC clients.
These co-conspirators, including Rodney Kahane and Daniel Paine and the non-law enforcement loan applicants, prepared fraudulent loan and line of credit applications in which they falsely reported the applicant’s income, and in many instances, included false and fraudulent financial documents, including false tax returns, false balance sheets and false income statements.
SANTA worked with numerous local bank officers who would facilitate the processing of the fraudulent loan applications in return for a kickback – typically cash, an American Express gift card or other means of remuneration.
In most instances, the fraudulent line of credit applications were approved by the banks. The applicants would take possession of the line of credit proceeds and withdraw funds against the lines of credit.
In almost all instances, the applicants were not able to repay the lines of credit, which resulted in substantial losses to the banks.
Between at least as early as September 13, 2005, through at least May 28, 2009, SANTA actively prepared and submitted loan documents based upon fictitious facts for at least thirty-two individual loans.
These loans were submitted on behalf of clients of PBBC utilizing false documents which were prepared by co-conspirators Kahane and Paine. These loans were submitted through bank officers at Wachovia Bank, Bank of America, Fifth Third Bank, Regions Bank, Suntrust Bank, Commerce Bank, and National City Bank, through co-defendant bank officers CHRISTOPHER BROORKS, DAVID MCGUIRE, and others.
A listing of the fraudulently applied for loans, including the date, the amount, the bank and banker involved and whether the loan was funded is attached hereto and made a part of this factual stipulation supporting the factual basis for the entry of the plea of guilty.
SANTA admits that the amount of the loans sought through his criminal activities was $2,658,000.00 and that the banks suffered an actual loss of $1,502,465.04 as a result of these fraudulently obtained loans.
The charge to which defendant SANTA is pleading guilty is conspiracy to commit fraud on financial institutions.
Santa is ‘Representing Mr. and Mrs Esposito’ in a ‘Removal Request’ via his Business, operating online at BusinessImageLift.com for an alleged article identified by his email, on a sister site at LawsInTexas.com. Note: Mrs. Esposito was formally indicted as Melissa Ringel, not Esposito, and both Esposito and Ringel have criminal cases pending in NY Supreme Court, before Justice Rodney.
Sentencing Guidelines
Prior to the sentencing hearing, the probation officer prepared a PSI wherein, movant was assessed a base offense level of
7.
(PSI§139).
Notwithstanding the probation officer’s initial calculations, because the loss was more than $2,500,000, but not more than $7,000,000, the offense level was increased by 18 levels.
(PSI§140).
Likewise, because the offense involved sophisticated means and since movant was determined to be an organizer or leader of the criminal activity that involved five or more participants, the offense level was increased by an additional six levels.
(PSI§§141,143).
Movant’s adjusted offense level was 31. (
PSI§145).
However, because movant demonstrated acceptance of responsibility, his offense level was reduced by three levels, ultimately setting his total offense level at 28.
(PSI§§147-149).
The probation officer further determined movant had a total of 8 criminal history points and a criminal history category of IV.
(PSI§§155-157).
Based on a total offense level of 28 and a criminal history category of IV, movant’s guideline imprisonment range was
110 to 137 months.
(PSI§193).
Francis ‘Frank’ Santa’s New Defense Counsel became a Criminal Judge (The Honorable Scott Suskauer)
On the same day objections to the PSI were filed, defense counsel also filed a motion for downward variance and/or downward departure based upon the 18 U.S.C. §3553(a) factors and movant’s extensive cooperation with the government.
(Cr-DE#315).
A few days later, defense counsel Richard L. Rosenbaum moved to withdraw from the case, which was granted and a notice of appearance was filed by Scott Ira Suskauer.
(Cr-DEs#317,323,324).
Attorney Suskauer filed amended objections, adopting prior counsel’s objections to the PSI, and further argued movant should only be held responsible for the actual loss amount and that the intended loss should not be calculated as part of the determination of the proper sentencing guideline.
(Cr-DE#322).
In response, the government opposed movant’s request for a downward variance/departure.
(Cr-DE#335).
Although the government admitted movant’s cooperation resulted in the arrest and prosecution of the co-defendants charged in the information in the underlying criminal proceedings, it nonetheless argued movant had committed unauthorized criminal acts while working with the FBI, which were discovered without the assistance of the movant, in violation of the cooperation agreement.
(Id.).
The government also opposed the movant’s objections to the PSI arguing that movant should be held responsible for the intended loss amount and not solely the actual loss.
(Cr-DE#334).
Then, on November 29, 2011, defense counsel filed a memorandum in aid of sentencing wherein movant’s good character was highlighted, and further reminded the Court of movant’s acceptance of responsibility, along with his extensive cooperation efforts with the government.
(Cr-DE#337).
Specifically, movant argued that his cooperation outweighs anything he may have done to offset the benefit that the government had already received and would continue to receive.
(Id.).
We get it though, Frank must be upset reading LIF when he sees Lawyers thievin’ millions, more than his amount and they are operating like nothing happened, livin’ the millionaire beach bum lifestyle in Florida.
Sentencing
Following defense counsel’s sentencing memorandum, on December 1, 2011, movant appeared for sentencing.
(Cr-DE#339).
During the hearing, defense counsel argued the intended loss was not the actual loss amount, therefore, movant was inappropriately assessed 18 levels instead of 16 levels.
(Cr-DE#351:3).
Following argument by both parties on this matter, the Court overruled the objection.
(Id.:19).
Next, defense counsel objected to movant’s role assessment arguing movant’s role was only that of manager to two individuals; however, the Court also overruled this objection.
(Id.:19-21).
Counsel then proceeded with his argument on his motion for downward variance or departure.
(Id.:21).
In doing so, counsel focused on movant’s extraordinary efforts with cooperation and noted that as a result of movant’s cooperation, 27 individuals had been convicted with others under investigation at that time.
(Id.:23-29).
In response, the government argued that based on three instances, it could not file a 5K1 motion because movant had committed wrongful acts in violation of his obligations to cooperate.
(Id.:33).
The government did not dispute that movant had provided extraordinary assistance; however, based on the specific requirements of the cooperation agreement, which encompassed movant not doing anything illegal again, he could not be a beneficiary of a 5K1 motion.
(Id.:33-37).
Following further argument from the government and closing remarks from defense counsel, the Court, after having considered the statements of all the parties, the PSI, as well as statutory factors set forth in 18 U.S.C. §3553(a)(1) through (7),
based on his cooperation, sentenced movant below the guideline range and imposed a sentence of 88 months, restitution totaling $1,502,465.04, followed by five years of supervised release. (Id.:37-45).
The Clerk entered judgment on December 2, 2011.
LIF COMMENT; BASED ON AN 88 MONTH SENTENCE, THIS WOULD MEAN AN ANTICIPATED FEDERAL PRISON RELEASE DATE OF: Tuesday, April 2, 2019 AND FRANCIS SANTA’S PROBATION WOULD END, IF COMPLETED WITHOUT INCIDENT, 60 MONTHS THEREAFTER; Tuesday, April 2, 2024 – SO FRANK’s STILL ON PROBATION AT THIS TIME AND THERE’S NOTHING ON THE COURT RECORDS WE COULD FIND INDICATING HOW MUCH OF THE $1.5M RESTITUTION HE HAS REPAID.
(Cr-DE#340).
No direct appeal ensued.
The judgment of conviction in the underlying criminal case became final at the latest on December 16, 2011, fourteen days after the entry of the judgment, when time expired for filing a notice of appeal.1
Conclusion
It is therefore recommended that this motion to vacate be denied; that a certificate of appealability be denied; and, the case closed.
Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report.
Signed this 2nd day of October, 2013.
MAGISTRATE JUDGE PATRICK A. WHITE
After performing some more research, the old adage that federal prisons do not offer ‘early release’, apparently that is a misnomer. LIF discovered Francis Santa was released on April 13, 2017 – so his 5 year post release probation would end conveniently right before he emailed LIT via his new business. So rather than 88 months, he served considerably less time and on review of the docket he was in prison since indictment so that means he served approximately 75 months.
U.S. District Court
Southern District of Florida (West Palm Beach)
CIVIL DOCKET FOR CASE #: 9:12-cv-81369-KAM
Santa v. USA Assigned to: Judge Kenneth A. Marra
Cause: 28:2255 Motion to Vacate Sentence |
Date Filed: 12/17/2012 Date Terminated: 12/09/2014 Jury Demand: None Nature of Suit: 510 Prisoner: Vacate Sentence Jurisdiction: U.S. Government Defendant |
Plaintiff | ||
Francis Santa | represented by | Francis Santa 48312-054 Terminal Island Federal Correctional Institution Inmate Mail/Parcels Post Office Box 3007 San Pedro, CA 90731-0207 PRO SEAnna Laniado Laniado Law PL 40 NW 3rd Street Suite 200 Miami, FL 33128 7862089565 Email: alaniado@laniadolaw.net TERMINATED: 01/08/2013 ATTORNEY TO BE NOTICED |
V. | ||
Defendant | ||
USA | represented by | Anne Ruth Schultz United States Attorney’s Office 99 NE 4 Street Miami, FL 33132 305-961-9117 Fax: 530-7941 Email: anne.schultz@usdoj.gov TERMINATED: 01/03/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICEDEllen L Cohen United States Attorney’s Office 500 South Australian Avenue Suite 400 West Palm Beach, FL 33401 561-209-1046 Fax: 659-4526 Email: Ellen.Cohen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED |
Date Filed | # | Docket Text |
---|---|---|
12/17/2012 | 1 | MOTION (Complaint) to Vacate Sentence (2255) . NOTE: All further docketing is to be done in the civil case. (Criminal Case # 11-80007), filed by Francis Santa. (Attachments: # 1 Appendix Addendum to Claim One, # 2 Civil Cover Sheet)(Laniado, Anna) (Entered: 12/17/2012) |
12/17/2012 | 2 | Judge Assignment to Judge Kenneth A. Marra (tpl) (Entered: 12/18/2012) |
12/18/2012 | 3 | Clerks Notice to Filer re: Electronic Case. Incorrect case opening information. The Filer selected the incorrect Jurisdiction when filing. The correction was made. It is not necessary to re-file this document. (tpl) (Entered: 12/18/2012) |
12/18/2012 | 4 | Clerks Notice to Filer re: Electronic Case. Incorrect case opening information. The Filer selected the incorrect Nature of Suit when filing. The correction was made. It is not necessary to re-file this document. (tpl) (Entered: 12/18/2012) |
12/20/2012 | 5 | ORDER re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255) filed by Francis Santa. Show Cause Response due by 1/14/2013. Signed by Judge Kenneth A. Marra on 12/20/2012. (ir) (Entered: 12/20/2012) |
01/03/2013 | 6 | Notice of Reassignment of Assistant U.S. Attorney by Ellen L Cohen on behalf of USA Attorney Anne Ruth Schultz terminated. (Cohen, Ellen) (Entered: 01/03/2013) |
01/04/2013 | 7 | First MOTION for Extension of Time to File Response/Reply as to 5 Order, Set/Reset Deadlines to March 5, 2013 by USA. (Attachments: # 1 Text of Proposed Order)(Cohen, Ellen) (Entered: 01/04/2013) |
01/04/2013 | 8 | MOTION to Withdraw as Attorney by Anna Laniado. by Francis Santa. Responses due by 1/22/2013 (Attachments: # 1 Text of Proposed Order)(Laniado, Anna) (Entered: 01/04/2013) |
01/05/2013 | 9 | RESPONSE to Motion re 8 MOTION to Withdraw as Attorney by Anna Laniado. filed by USA. Replies due by 1/17/2013. (Cohen, Ellen) (Entered: 01/05/2013) |
01/08/2013 | 10 | ENDORSED ORDER granting 7 Motion for Extension of Time to File Response/Reply 5 Order to respond to March 5, 2013. Responses due by 3/15/2013. Signed by Judge Kenneth A. Marra on 1/8/2013. (ir) (Entered: 01/08/2013) |
01/08/2013 | 11 | MOTION to Terminate Counsel by Francis Santa. (lbc) (Entered: 01/08/2013) |
01/08/2013 | 12 | MOTION to Supplement the Record by Francis Santa. (lbc) (Entered: 01/08/2013) |
01/08/2013 | 13 | ORDER granting 8 Motion to Withdraw as Attorney. Attorney Anna Laniado terminated ; granting 11 Motion to proceed pro se. Signed by Judge Kenneth A. Marra on 1/8/2013. (ir) (Entered: 01/08/2013) |
01/08/2013 | 14 | ORDER REFERRING CASE to Magistrate Judge Patrick A. White for Pretrial Proceedings. Motions referred to Patrick A. White Signed by Judge Kenneth A. Marra on 1/8/2013. (lbc) (Entered: 01/08/2013) |
01/10/2013 | 15 | NOTICE of filing receipt of correspondence by Francis Santa. (ir) (Entered: 01/10/2013) |
01/11/2013 | 16 | INITIAL ORDER OF INSTRUCTIONS TO PRO SE LITIGANT. Signed by Magistrate Judge Patrick A. White on 1/10/2013. (br) (Entered: 01/11/2013) |
01/11/2013 | 17 | ORDER TO SHOW CAUSE that on or before forty-five days from the date of this order, the respondent shall file a memorandum of fact and law to show cause why this motion should not be granted. Signed by Magistrate Judge Patrick A. White on 1/10/2013. (br) (Entered: 01/11/2013) |
02/15/2013 | 18 | MOTION for Extension of Time to File Response/Reply as to 17 Order to Show Cause, by USA. (Attachments: # 1 Text of Proposed Order)(Cohen, Ellen) (Entered: 02/15/2013) |
02/19/2013 | 19 | ORDER granting 12 Motion ; granting 18 Motion for Extension of Time to File Response/Reply re 12 MOTION to Supplement the Record subject to any and all applicable procedural bars., 18 MOTION for Extension of Time to File Response/Reply as to 17 Order to Show Cause, ( Responses due by 4/25/2013) Signed by Magistrate Judge Patrick A. White on 2/19/2013. (cz) (Entered: 02/19/2013) |
02/25/2013 | 20 | Petitioner’s MOTION in Opposition to the Government’s Request for 18 MOTION for Extension of Time to File Response/Reply as to 17 Order to Show Cause, by Francis Santa. (Attachments: # 1 Text of Proposed Order)(yar) (Entered: 02/26/2013) |
02/27/2013 | 21 | MEMORANDUM Brief in Support of re 1 MOTION to Vacate Sentence (2255), With Points and Authorities by Francis Santa. (yar) (Entered: 02/27/2013) |
02/27/2013 | 22 | ORDER denying 20 Motion in opposition to government’s motion for extension of time. Signed by Magistrate Judge Patrick A. White on 2/27/2013. (cz) (Entered: 02/27/2013) |
03/25/2013 | 23 | MOTION for Production of Documents/Plea Colloquy, Sentencing Transcripts, Pursuant to Petitioner’s Motion Under 28 USC 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody by Francis Santa. (yha) (Entered: 03/25/2013) |
03/26/2013 | 24 | ORDER deferring ruling on 23 Motion to Produce, the government shall respond to this motion with its response to the order to show cause. Signed by Magistrate Judge Patrick A. White on 3/26/2013. (cz) (Entered: 03/26/2013) |
03/28/2013 | 25 | MOTION for Production of Documents/Plea Colloquy, Sentencing Transcripts Pursuant to Petitioner’s Motion Under 28 U.S.C. 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody by Francis Santa. (yar) (Entered: 03/28/2013) |
04/01/2013 | 26 | ORDER deferring ruling on 25 Motion to Produce, the government shall respond to the two motions for production of documents forthwith. Signed by Magistrate Judge Patrick A. White on 4/1/2013. (cz) (Entered: 04/01/2013) |
04/01/2013 | 27 | RESPONSE to Motion re 25 MOTION to Produce, 23 MOTION to Produce transcripts of plea and sentening hearings and corresponding orders filed by USA. Replies due by 4/11/2013. (Attachments: # 1 Transcripts Plea colloquy, # 2 Transcripts Sentencing hearing)(Cohen, Ellen) (Entered: 04/01/2013) |
04/03/2013 | 28 | ORDER granting 23 Motion to Produce; granting 25 Motion to Produce, see government’s response (DE#27). Signed by Magistrate Judge Patrick A. White on 4/3/2013. (cz) (Entered: 04/03/2013) |
04/08/2013 | 29 | MOTION for Bail Pending 28 U.S.C. 2255 Motion, Pursuant to FRAP Rule 23 and the Bail Reform Act 18 U.S.C. 1341 by Francis Santa. Responses due by 4/25/2013 (yar) (Entered: 04/08/2013) |
04/09/2013 | 30 | ORDER denying 29 Motion for Bond. Signed by Judge Kenneth A. Marra on 4/9/2013. (ir) (Entered: 04/09/2013) |
04/15/2013 | 31 | MOTION to Expand the Record Pursuant to Rule 7 Governing 2255 Proceedings by Francis Santa. (yar) (Main Document 31 replaced on 5/15/2013) (ail). (Entered: 04/15/2013) |
04/16/2013 | 32 | ORDER granting 31 Motion for Leave to File Excess Pages to include plea transcript. Signed by Magistrate Judge Patrick A. White on 4/15/2013. (cz) (Entered: 04/16/2013) |
04/17/2013 | 33 | RESPONSE TO ORDER TO SHOW CAUSE re 5 Order, Set/Reset Deadlines by USA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Cohen, Ellen) (Entered: 04/17/2013) |
04/23/2013 | 34 | Notice of Interlocutory Appeal by Francis Santa re 30 Order on Motion for Bond. Filing fee $(NOT PAID). Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (mc) (Entered: 04/24/2013) |
04/23/2013 | 35 | MOTION for Certificate of Appealability construed from 34 Notice of Appeal by Francis Santa. Responses due by 5/10/2013 (mc) (Entered: 04/24/2013) |
04/29/2013 | 36 | Acknowledgment of Receipt of NOA from USCA re 34 Notice of Interlocutory Appeal, filed by Francis Santa. Date received by USCA: 4/24/13. USCA Case Number: 13-11788-C. (hh) (Entered: 04/29/2013) |
05/03/2013 | 37 | TRANSCRIPT INFORMATION FORM by Francis Santa re 34 Notice of Interlocutory Appeal. No Transcript Requested. (mc) (Entered: 05/07/2013) |
05/15/2013 | 38 | Clerks Notice of Docket Correction re 31 MOTION for Leave to File Excess Pages. Correction: Image replaced with complete image; see attached for viewing. (ail) (Entered: 05/15/2013) |
05/17/2013 | 39 | MOTION for Leave to Proceed in forma pauperis on appeal with Inmate Account Statement attached by Francis Santa. (mc) (Entered: 05/17/2013) |
05/20/2013 | 40 | NOTICE of Traverse Reply by Francis Santa re 33 Response to Order to Show Cause (lbc) (Entered: 05/20/2013) |
05/20/2013 | 41 | MOTION to Supplement the Record Pursuant to Rule 15 by Francis Santa. (lbc) (Entered: 05/20/2013) |
05/21/2013 | 42 | ENDORSED ORDER granting 39 Motion for Leave to Proceed in Forma Pauperis on Appeal. Signed by Judge Kenneth A. Marra on 5/21/2013. (ir) (Entered: 05/21/2013) |
05/21/2013 | 43 | ORDER granting 41 Motion motion to supplement the record, the government shall respond in thirty days to additional issues and may apply any and all applicable procedural bars. Signed by Magistrate Judge Patrick A. White on 5/21/2013. (cz) (Entered: 05/21/2013) |
05/28/2013 | 44 | RESPONSE/REPLY to 41 MOTION to Supplement the Record Pursuant to Rule 15, 43 Order on Motion for Miscellaneous Relief by USA. (Cohen, Ellen) (Entered: 05/28/2013) |
05/29/2013 | 45 | *Endorsed Order tHE GOVERNMENT’S mOTION TO WITHDRAW ORDER de#43 AS DUPLICATIVE OF de#19 IS GRANTED. Signed by Magistrate Judge Patrick A. White on 5/29/2013. (cz) (Entered: 05/29/2013) |
06/05/2013 | 46 | ORDER denying 35 Motion for Certificate of Appealability Signed by Judge Kenneth A. Marra on 6/4/2013. (amb) (Entered: 06/05/2013) |
06/07/2013 | 47 | MOTION for the District Court to Take Judicial Notice – For The Petitioner’s 1 Motion to Vacate/Set Aside/Correct Sentence (2255),, MOTION for an Evidentiary Hearing by Francis Santa. (yar) (Additional attachment(s) added on 6/10/2013: # 1 Exhibit) (yar). (Entered: 06/10/2013) |
06/21/2013 | 48 | ORDER granting 47 Motion to take judicial notice of 2255 filed ; denying 47 Motion for Hearing, if a hearing is required one will be set at a later date. Signed by Magistrate Judge Patrick A. White on 6/21/2013. (cz) (Entered: 06/21/2013) |
09/03/2013 | 49 | ORDER of Dismissal from USCA, denying Appellant’s motion for a certificate of appealability because Santa’s has failed to make the requisite showing as to 34 Notice of Interlocutory Appeal, filed by Francis Santa, USCA # 13-11788-C (hh) (Entered: 09/03/2013) |
10/02/2013 | 50 | REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255), filed by Francis Santa. Recommending that this motion to vacate be denied; that a certificate of appealability be denied; and, the case closed. Objections to R&R due by 10/21/2013 Signed by Magistrate Judge Patrick A. White on 10/2/2013. (tw) (Entered: 10/02/2013) |
10/21/2013 | 51 | MOTION for Extension of Time to File Opposition to Report of Magistrate; Attached Declaration of Francis Santana 50 REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255), filed by Francis Santa Recommending that this motion to vacate be denied; that a certificate of appealability be denied; and, the… by Francis Santa. (yar) Modified text on 10/21/2013 (yar). (Entered: 10/21/2013) |
10/22/2013 | 52 | ENDORSED ORDER granting 51 Motion for Extension of Time to File Response/Reply re 50 REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255), filed by Francis Santa Recommending that this motion to vacate be denied. Objections to R&R due by 10/31/2013. Signed by Judge Kenneth A. Marra on 10/22/2013. (ir) (Entered: 10/22/2013) |
10/31/2013 | 53 | Petitioner’s OBJECTION to Report of Magistrate Judge 50 Report and Recommendations by Francis Santa. (yar) (Entered: 11/01/2013) |
12/09/2014 | 54 | FINAL JUDGMENT ORDER ADOPTING 50 REPORT AND RECOMMENDATIONS denying 1 petition to vacate pursuant to 2255. Certificate of Appealability: DENIED. This case is CLOSED. Signed by Judge Kenneth A. Marra on 12/8/2014. (ir)NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69. Modified on 12/9/2014 (ir). (Entered: 12/09/2014) |
12/10/2014 | 55 | Case No Longer Referred to Magistrate Judge Patrick A. White/Case Closed by the District Judge. Signed by Magistrate Judge Patrick A. White on 12/10/2014. (br) (Entered: 12/10/2014) |
And here’s another lawyer not reported for mortgage fraud. A bit of a cliche when you see Judge Marra turned a blind eye to it as well and then is sentencing Santa…
LONG-TERM FBI UNDERCOVER OPERATION NABS A TOTAL OF 24 DEFENDANTS
Charges include Conspiracy, Bank Fraud, Money Laundering and Identity Theft
JAN 12, 2011 | REPUBLISHED BY LIT: APR 22, 2022
Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, and John V. Gillies, Special Agent in Charge, Federal Bureau of Investigation (FBI), Miami Field Office, announce the filing of charges against fifteen defendants on charges of conspiracy to commit bank fraud, bank fraud, bribery, money laundering, and identity theft.
The defendants, including a loan broker, seven bank officers, and seven customers,are charged in separate Informations for their participation in a four-year scheme to defraud ten area banks out of more than $10 million through the submission of fraudulent small business loans and lines of credit applications.
Previously, another nine defendants were charged in connection with this undercover operation – seven were charged for their participation in a separate identity theft ring and two were charged with bank fraud and money laundering.
U.S. Attorney Wifredo Ferrer stated,
“South Florida ranks first in the nation in home mortgage loan origination fraud, through which false documents are created and submitted to banks to obtain home mortgage loans.
Today, we see a new twist on that scheme. Instead of home mortgages, this ring of defendants, with the help of corrupt bankers, used the same tactics to fraudulently obtain small business loans and lines of credit.
To date, this undercover operation has resulted in charges against a total of 24 defendants, putting them out of the fraud business and potentially into jail cells.”
FBI Special Agent in Charge John V. Gillies stated,
“Today’s case highlights a growing and disturbing trend of the illegal use of small business lines of credit to further criminal activity.
As a result of individual corruption, today’s defendants cost taxpayers, banks and the federal government millions of dollars.
While today’s case marks a significant first step toward combating these crimes, the FBI remains vigilant in its pursuit of this new breed of financial and corporate greed.”
And here’s a recent 11th Circuit decision agreeing with pro se litigants that Judge Kenneth Marra did in fact abuse his powers, but his admitted perjury by written orders confirming the same is not enough to remove him from the lower court case, despite a plethora of case law rejecting that conclusion.
The Information filed today charges loan broker Frank Santa, 51, of Boca Raton, the owner and operator of Palm Beach Business Consultants (PBBC), a loan brokerage business specializing in obtaining fraudulent business loans for clients with poor credit histories.
Also charged were the following seven bankers:
Daniel Agudelo, 34, of Royal Palm Beach, a Small Business Banker at Fifth Third Bank;
Christopher Brooks, 34, of Tamarac, an Assistant Vice President at Bank of America;
Macario Deguzman, 30, of Miramar, a Vice President at Regions Bank and Am Trust Bank;
William Hebert, 36, of Lake Worth, a Vice President at HSBC Bank;
David Mcguire, 39, of Boca Raton, a Regional Private Banker at Wachovia Bank;
David Ramoy, 33, of Lighthouse Point, a bank officer at Floridian Community Bank;
and
Alexander Reyes, 25, of Boynton Beach, a Small Business Banker at Fifth Third Bank.
The Francis Santa Foundation
Boca Raton, FL, United States
February 25, 2022
Francis Santa, a philanthropist from Boca Raton, Florida is launching the Francis Santa Foundation. He has created a website for his foundation which can be found at https://francissantafoundation.com.
Credit: GLOBE NEWSWIRE/YAHOO!
LIF are non-lawyers, but we would suggest that operating a ‘foundation’*as a convicted felon – is probably not allowed, and whether Santa has disclosed this to his Probation Officer is questionable (it was advertised before his estimated probation ended).
Certainly, LIT searched the IRS for his foundation but found no match.
Finally, considering he has a restitution order of over $1.5 Million dollars, the only foundation he should be giving to is the fund to repay his victims.
Boca man pleads guilty to conspiring to bribe bankers and fake financial documents
AUG 9, 2011 | REPUBLISHED BY LIT: APR 22, 2022
WEST PALM BEACH — The owner of a Boca Raton company pleaded guilty Wednesday to conspiring to bribe local bankers and falsify financial documents to secure more than $1.5 million in fraudulent small business loans and lines of credit.
Francis Santa admitted orchestrating what federal prosecutors have described as an unique form of fraud: enlisting corrupt bankers to approve business loans for clients with poor credit histories. Santa and his employees at Palm Beach Business Consultants attempted to push through more than $10 million in bogus loans and lines of credit since the firm opened in 2003, according to the U.S. Attorney’s Office.
After federal authorities caught on to Santa’s scheme, he began working with them and agreed to introduce an undercover FBI agent to the bankers. The sting culminated in January with the arrests of 15 people, including Santa, a Broward Schools assistant principal, a former Broward Sheriff’s investigative aide and seven Broward and Palm Beach bankers.
Fourteen of the defendants have entered into plea agreements. Thomas Correa, an assistant principal at the Lanier-James Education Center in Hallandale Beach, is still fighting charges he signed false tax returns to receive $300,000 in bank loans.
Santa, 52, agreed to plead guilty to a single count of conspiracy to commit fraud on a financial institution, a charge that could carry up to 30 years in federal prison. He likely faces far less time behind bars when U.S. District Judge Kenneth Marra sentences him on Oct. 21.
Santa’s attorney, Richard Rosenbaum, said his client cooperated extensively with federal authorities and will likely be called to testify if Correa goes to trial.
When Santa left the federal courthouse on Wednesday, he told a photographer, “You’re not getting my picture,” and began running. In a white dress shirt and tan slacks, Santa sprinted about three blocks, stopped to catch his breath, then started running again.
As part of the FBI sting, five of the seven bankers agreed to help the undercover agent launder hundreds of thousands of dollars in purported drug money, according to court records. Three of the seven bankers have received prison terms of up to 50 months, while the remaining four are awaiting sentencing.
And here’s another lawyer not reported for financial fraud by taking advantage of former NFL Players in Florida by stealing, in many instances, their life savings and retirement funds.
The other people arrested were Palm Beach Business Consultants clients seeking to get loans or lines of credit. Among them were Correa, who had been a longtime reserve Broward Sheriff’s deputy, and Jeanne Ward, who had been an investigative aide with the Broward Sheriff’s Office for 13 years.
Ward and her ex-husband Terrance Ward have pleaded guilty to fraud and identity theft charges, admitting she illegally used a law enforcement database to pilfer people’s identities to get lines of credit. Both are scheduled to be sentenced on Sept. 9.
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Editors Choice
A Message for Felon Francis Santa: We Cannot Be Bribed. Stop the Harassment
Once a person has been convicted of a felony, he or she can be considered a felon for life, according to the strict meaning of the word.
Dear Santa…..
DEC. 12., 2022
We’ve set aside your plethora of harassing emails and bribes for many months. Indeed, we have never contacted the ex-wife below, who is desperate to provide more unfavorable information about you, Francis “Frank” Santa.
But now your emails are becoming both incessant and threatening, which means we have to publish all the information for our own safety.
You are a convicted felon Francis “Frank” Santa. Considering your stalking behavior, that makes you a very dangerous and untrustworthy person.
We are stating in this public forum: cease and desist from your writings, threats and stop tryin’ to bribe us with “donations” – which are not donations as they are based on LIF and LIT removing an article about you, which is based on the real truth, no bull.
And remember Francis Santa, you are the one who came charging at us with a takedown request for the Ringel’s, indicted in NYC.
In return, all we did was google you and your business to find out who we were dealin’ with.
That’s when we discovered the information about your criminal past, which was recovered from publicly accessible information.
LIF and LIT didn’t ‘destroy’ you Frank, you did that all by yourself.
May 17, 2022
your-name
Francis Santa
your-email
fs.businessimagelift@gmail.com
your-subject
I am coming hat in hand to you for help.
your-message
Dear Sir/Madam,
I am sincerely and humbly asking you for help. I do not know who I upset to find myself being personally punished on your website but there my be a good reason for which an apology on my part may be need.
If I have wronged someone there I am deeply sorry.
I am a spiritual person and have worked very hard to get to where I am in my life after having my world destroyed 11 years ago.
I have changed and I take responsibility for all my past issues, but more important to me now in life is that if I have done something to someone to offended them even without knowing why, I apologize and more forward.
Please contact me back by email or phone (305)967-3168 so I can make amends.
I do know who has so much dislike for me and took the time to hurt my wife, children and grandchildren and me and but I must have hurt them deeply for the posting to be put up about me.
Last, please understand I am not asking for sympathy or asking you to remove it.
If I have harmed someone in the last 6 years and I am wrong for something I personal did then I deserve it but also if I did nothing I don’t.
Again, please contact me and tell me what I have to do to make things right and discuses this.
Very Respectfully,
Francis
Jun 9, 2022
your-name
Francis Santa
your-email
franksanta054@yahoo.com
your-subject
Need your help
your-message
Dear Sir/Madam,
I sent an email to info@lawsinflorida.com and did not receive a response.
I really need your help, please see attached.
Multi_Upload
https://lawsinflorida.com/wp-content/uploads/wp_dndcf7_uploads/wpcf7-files/Francis-Santa-lawsinflorida.pdf
Jul 22, 2022
your-name
GINA PELLICCIO
your-email
deadmom1960@gmail.com
your-subject
Francis Frank Santa
your-message
I read with great interest your article on my former spouse – what you don’t know is that Mr. Santa is currently in arrears for child support in the amount of $196,000.
I can provide documentation for proof.
I find it quite amusing that this man cries poor mouth, continues to hide assets, resides in a gated community in Boca Raton and has started this bogus foundation.
Leopards do not change their spots –
You do realize he also spent 5 of a 15 year bid in NYS prison for a credit repair scam in which he stole 2.5 MILLION; was prosecuted by DA Morgenthau’s office and was ultimately released to the state of Florida for his parole and probation.
Probation doesn’t give a rat’s ass about what he is doing.
Child Support enforcement doesn’t give a rats ass and good luck trying to get in touch with someone.
I will never see that money he owes – – I can’t even get a life insurance policy on him – something he was to provide for his FIRST born – not the other children he has – one of which is a convicted counterfeitter.
https://www.wpbf.com/article/santa-arrested-in-nordstrom-parking-garage/1311487#
https://www.justice.gov/usao-mdfl/pr/delray-beach-man-sentenced-making-and-possessing-counterfeit-currency
I encourage LIF to contact me.
October 13, 2022
your-name
Francis Santa
your-email
f.michael@businessimagelift.com
your-subject
Need your help ( https://lawsinflorida.com/where-is-he-now-fraudster-francis-santa-was-sentenced-to-88-months-for-conspiracy/ )
your-message
I sent you an email many months ago.
I have put my life back together.
The past 11 years I have paid dearly for what happen.
My family has suffered the most because of the issue.
As for myself I feel that what I went threw changed me and made me a better person and took me off a bad path.
I am trying so hard to move on.
Your article about me is destroying my family.
Please contact me back to see if you can help me in some way to remove or de-index this.
I do understand that you spent a tremendous in research and time posting this.
I have no problem paying and administrative fees that you need.
I am coming to you with hat in hand for your help
Where Is He Now? Fraudster Francis Santa Was Sentenced to 88 Months for Conspiracy
Respectfully,
Francis
December 1, 2022
Donor Comment: I wanted to donate more and will each month when I have extra money.
December 1, 2022
Donor Comment: I would like to also advertise with you.
December 8, 2022
Subject:
francis santa where is he now
From:
the former mrs santa <deadmom1960@gmail.com>
Submitted on: Dec 8, 2022 at 20:26
your-name
the former mrs santa
your-email
deadmom1960@gmail.com
your-subject
francis santa where is he now
your-message
ha ha now he is offering a scholarship???
lol scam people into giving money to his “foundation” that isn’t a 501c3 – so he can give it to “other” charities. Why don’t I just donate to them myself and get the tax write off?
are people that stupid?
December 8, 2022
your-name
FORMER MRS SANTA
your-email
DEADMOM1960@GMAIL.COM
your-subject
FRANCIS SANTA – WHERE ARE THEY NOW
your-message
YOU MIGHT ALSO BE INTERESTED IN KNOWING THAT IN ADDITIONAL TO THE HUNDREDS OF PEOPLE MR SANTA HAS SCAMMED – HE CURRENTLY OWES OVER 195000 IN BACK CHILD SUPPORT WHILST LIVING LARGE IN BOCA – HE HAS MADE HIMSELF UNTOUCHABLE SINCE NO ASSETS ARE IN HIS NAME.
ARE YOU ALSO AWARE THAT HE SERVED 5-15 IN NYS PRISON FOR A DEBT RELIEF SCAM?
December 12, 2022
I am waiting patiently to talk to you regarding your posting on LIF. I am being as respectful as I can at this time.
I know you own the site along with LIT and you are responsible for the posting.
You have turned my life upside down for no reason. The internet can be very cruel.
I have suffered enough with my family and you have put my life in danger.
I could understand if I did something wrong but that is not the case.
Please remove the posting or de-index it from the search engines. I am not the only person you did this to for no reason.
What I find interesting is that you are a media company helping people and you are also a company that destroys people.
Do your clients know this?
All I want is for you to remove the posting.
You have hurt me for more than 9 months.
I think that you made your point (whatever it was)
Donor Comment: Thank you
Boca man pleads guilty to conspiring to bribe bankers and fake financial documents
AUG 9, 2011 | REPUBLISHED BY LIT: APR 22, 2022
WEST PALM BEACH — The owner of a Boca Raton company pleaded guilty Wednesday to conspiring to bribe local bankers and falsify financial documents to secure more than $1.5 million in fraudulent small business loans and lines of credit.
Francis Santa admitted orchestrating what federal prosecutors have described as an unique form of fraud: enlisting corrupt bankers to approve business loans for clients with poor credit histories. Santa and his employees at Palm Beach Business Consultants attempted to push through more than $10 million in bogus loans and lines of credit since the firm opened in 2003, according to the U.S. Attorney’s Office.
After federal authorities caught on to Santa’s scheme, he began working with them and agreed to introduce an undercover FBI agent to the bankers. The sting culminated in January with the arrests of 15 people, including Santa, a Broward Schools assistant principal, a former Broward Sheriff’s investigative aide and seven Broward and Palm Beach bankers.
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.
Editors Choice
We’re Circlin’ Back Re the Many Complaints Against Storm Damaged Florida Lawyer Scot Strems
The clients of Strems may have discovered that the insurance company was not denying their claim and they could resolve it themselves without paying 25% of the undisputed amounts to the law firm.
LIF Commentary
Jan 4, 2023
The Florida Supreme Court has disbarred Coral Gables attorney Scot Strems, saying he grossly mismanaged his law firm, engaged in professional misconduct and repeatedly filed “frivolous” insurance claims.
In a Dec. 22 ruling in two Florida Bar complaints against Strems, the high court agreed with findings of fact submitted by a referee in both cases, but justices stopped short of saying that the attorney should be permanently disbarred.
“Although (Strems) has certainly engaged in ethically questionable behavior, he has not demonstrated that he is not amenable to rehabilitation,” the court’s opinion states. “Permanent disbarment is warranted only where an attorney’s conduct indicates he or she engages in a persistent course of unrepentant and egregious misconduct and is beyond redemption.”
In addition to being disbarred for “cumulative misconduct,” Strems was ordered to pay legal costs in the amount of more than $45,500.
Strems was the sole partner in the Strems Law Firm (SLF), which by 2016 had only three litigation attorneys but was managing 700 cases, the opinion states.
“SLF’s inadequate staffing and lack of sufficient office procedures resulted in client neglect, case dismissals, frustrated judges and costly sanctions on a near weekly basis,” the court said.
Strems’ attorney, Benedict Kuehne, told the Florida Record that his client still wants to find a way to contribute to the legal profession.
“Scot intends to ask the Florida Supreme Court to reconsider the severity of the sanctions based on his long track record of doing the right thing under often difficult circumstances,” Kuehne said. “His prior unblemished career should merit an opportunity to prove his value to the profession and the public.”
Strems was deeply disappointed in the high court’s disbarment decision, according to Kuehne.
“For his entire career, Scot dedicated his professional endeavors to helping wronged homeowners pursue their legitimate grievances against insurance companies that refused to pay for damages to their homes,” Kuehne said. “He has never intentionally or purposely violated Bar rules.”
Kuehne noted that the referee who considered the evidence pointed to Strems’ lack of prior difficulties with Bar rules and had recommended a two-year suspension.
“Scot knows that fighting insurance companies in Florida’s courts is difficult,” Kuehne said. “He did that every day with honesty and integrity, seeking justice for his clients. He worked together with other talented lawyers to hold the insurance companies accountable for their misconduct.”
Sep 12, 2023
The successor to a law firm that was known as “public enemy number one” by Florida’s property insurance industry after it filed thousands of unnecessary lawsuits – many of them on the same claim – has slipped into bankruptcy, putting a deep red line under an expensive and frustrating chapter in the state’s insurance litigation crisis.
“I see it as a fitting end to this whole story,” said Scott Johnson, a Florida insurance consultant and educator who has written extensively about the Scot Strems saga over the last six years.
Strems is the Coral Gables plaintiffs’ attorney who was disbarred in 2022 for multiple Bar rule and ethical violations. He had become the poster child for Florida lawyers who reportedly took advantage of the state’s one-way attorney fee statutes and led the explosion of claims litigation in recent years – a major factor behind escalating premiums and a dozen insurer insolvencies in Florida, insurance advocates have said.
“Strems was emblematic of the Florida litigation problem, in that litigation became more about the attorney’s fee than about the claim,” said Matt Lavisky, a Tampa insurance defense lawyer with the Butler law firm.
This was ambulance chasing on steroids. – Florida CFO Jimmy Patronis in a letter to the Florida Bar.
Shortly before his disbarment, the Strems Law Firm was reconstituted as The Property Advocates. Strems left the firm and sold his interest for $40 million, to be paid in annual installments until a balloon payment was due in 2030, according to court documents.
Despite apparent fees from the multitude of lawsuits, The Property Advocates, known as TPA, was unable to pay its debts, including the payments on the note to Strems and money owed to other lawyers at the firm.
“They had to pay themselves instead, it looks like,” Johnson said.
Strems has alleged, in his own lawsuit against The Property Advocates, that the firm distributed almost $30 million to shareholders at the firm and paid him just a few million toward the note.
The heads of the new firm “steered TPA on a path towards insolvency and destruction designed to enrich themselves and their friends and leave behind only a carcass of what was once an exceedingly successful law firm…” Strems’ 2023 complaint contends.
Strems is listed as the top creditor in the firm’s Chapter 11 bankruptcy petition, filed Aug. 25, with about $36 million owed to him, according to a promissory note he and the firm signed in 2020. The biggest question for the U.S. bankruptcy judge in the case may be whether the disbarred Strems, who acknowledged that he cannot find the original promissory note, will be considered a secured creditor, placed at the head of the line for payments from the firm.
Bankruptcy experts contacted by Insurance Journal said that courts often consider promissory notes to have priority in Chapter 11 payment schedules. On the other hand, in a motion filed with the court, The Property Advocates has argued that Strems’ “purported lien” was never perfected by the filing of a Florida Uniform Commercial Code financing statement, an omission that could prove fatal to Strems’ demands for the $36 million, bankruptcy lawyers said.
“The Debtor’s motion is in no way an admission that Scot Strems has a valid claim against the Debtor or a properly perfected security interest in the Debtor’s property,” the firm wrote in its motion to use cash on hand to keep the firm in operation. “The Debtor specifically reserves its rights to contest the validity of such alleged debt and security interests that may be asserted.”
For now, the bankruptcy judge has allowed TPA to use the money but granted Strems post-petition interest against the cash collateral.
It’s unclear at this point how much the firm would be able to eventually pay on its debts, even secured debts. The Chapter 11 petition shows that the law firm has less than $10 million in assets but as much as $50 million in liabilities. To put that in perspective, in 2020, the Strems Law Firm had a reported book value of more than $20 million, according to published reports.
Besides Strems, TPA says it owes disputed amounts to other lawyers once associated with the firm. These include more than $665,000 to Michael Patrick, now with the Morgan & Morgan injury law firm; and $230,000 to Gregory Saldamando, now with First Stop Legal.
Saldamando in June filed his own suit against The Property Advocates, charging that the firm had breached its employment agreement with him and failed to pay thousands of dollars in attorney fees. The case is pending in Miami-Dade Circuit Court but will likely be put on hold while the bankruptcy proceedings continue.
An exhibit in Saldamando’s complaint gives a glimpse into Strems’ state of mind as his firm embarked on filing as many as 10,000 lawsuits against insurance companies over property claims. In a 2018 email sent when Saldamando was hired, Strems wrote: “Greg, terms are confirmed. World domination!”
But like others who have attempted to conquer the world, the effort seemed to overwhelm the law firm and was marked by disorganization, mismanagement and the fomentation of bitter enemies. In the end, it collapsed in disgrace, according to court documents.
Strems Law Firm’s “inadequate staffing and lack of sufficient office procedures resulted in client neglect, case dismissals, frustrated judges, and costly sanctions on a near weekly basis,” the Florida Supreme Court wrote in its December 2022 disbarment order.
Strems, Saldamando and Hunter Patterson, the president of The Property Advocates, could not be reached for comment for this article. Strems can apply for readmission to the Bar in 2027.
Strems’ actions and his volume of litigation were so extensive and so infuriating to the Florida insurance industry that Johnson blogged about it regularly through the years and has now written a book about it all, compiling new information to go with his blog reports from his website. “Collapse of an Evil Empire” is due out later this month.
In the end, Strems and his law firms’ excessive litigation cost insurers significantly in loss adjustment expenses and heartburn. Citizens Property Insurance Corp., the state-created insurer of last resort, went so far as to sue Strems over allegations of fraud, racketeering, filing false invoices and bad faith. The insurer settled for $1 million in 2022, far less than it had initially claimed in damages.
The lawyer’s actions had something of a silver lining. By putting a face to the claims litigation crisis, it helped Florida lawmakers pass sweeping legislation in late 2022 that ended one-way attorney fees and assignments-of-benefit agreements, and clamped other limits on litigation, all of which have helped turn the tide on the distressed market in the Sunshine State, Johnson and others in the industry have said.
LIF Commentary
Our sister website, LawsinTexas.com initially followed the Strems cases from 2020 and his surprising loan of over $1.2M from JPMorgan Chase, which we are unable to confirm has been forgiven or not (the lack of detail in this regard makes us believe it HAS been 100% forgiven).
This is galling when you take into account the type of business Strems was conducting and the 25% fee he was charging clients for sums these clients could obtain directly from the insurer without a lawyer, or more importantly the 25% fee.
The complaint below is detailed and very long.
The referee, which is a judge by the name of Dawn Denaro of the 11th Judicial Circuit of Florida is a huge fan of Scot Strems.
So much so, the once available youtube video (via the court’s own channel) of the disciplinary proceedings via zoom re Strems has been taken offline, and is labeled a ‘private video‘, despite all the incessant claims of TRANSPARENCY by the judiciary.
Y’all are lyin’ Outlaws in Dirty Black Robes at the Judiciary, that’s for sure.
Moving on, after reading this complaint, it’s pretty much a copycat of the Allan Campbell complaint we highlighted recently.
LIF is still penning more articles about Campbell’s case, and the rogue legal associates and felons he was involved with.
In that case, the Supreme Court incorrectly sanctioned Campbell to a short 3-year suspension.
We believe his actions warranted disbarment.
Here, like Campbell, Strems has several complaints ongoing, so we’ll see how the judiciary react in due course. However, in our opinion, we agree with the Bar, it should be disbarment for Scot Strems, if justice is to be served.
Suspended attorney Strems at disbarment trial; New Bar petition says he violated suspension order – Again, this time pertainin’ to ‘Sale’ of Business.
Originally Published; Feb 1, 2022 | Republished by LIT; May 31, 2022
NATURE OF THE CASE
The Bar seeks review of the Referee’s report that recommends this Court deny a petition for contempt filed against Mr. Strems.
This Court entered an emergency suspension order on June 9, 2020, in Case No. SC20-808. (ROR p.3).
That case is currently pending on review with the Referee recommending a two-year suspension.
The Bar is seeking disbarment.
Two other subsequent disciplinary cases are also pending in SC20-842 and SC20-1739.
At the time of this suspension, Mr. Strems was the sole stockholder in The Strems Law Firm.
He had 5000 to 7000 clients and more than 100 employees, including about 30 lawyers.
(ROR p.3, T145, 319).
During the thirty-day window provided in the suspension order before he had to cease representing clients, with the help of outside counsel, Mr. Strems changed the name of his law firm to The Property Advocates, P.A.
(ROR p.69).
He had his professional association issue new, additional stock, which was sold on July 9, 2020, to three of his employee-attorneys.
(ROR p. 69).
They became the new officers of the professional association.
Simultaneously, he entered into a stock redemption agreement with the professional association
(ROR p. 70, TFB-Ex. B, p. 84).
Mr. Strems sent a letter to his clients, dated July 1, 2020, describing these events and attaching the suspension order.
(A3).
The letter did not advise them of their right to seek other counsel, and it provided notice of his suspension in a manner that the Bar maintains was misleading.
The Referee is recommending that the petition for contempt be denied because she concluded that Mr. Strems did not sell his law practice for purposes of Rule 4-1.17 of the Florida Rules of Professional Conduct.
The Bar maintains this is a sale for purposes of the Rules of Professional Conduct, and that the July 1 letter also violated the suspension order and Rules 4-1.4 and 4-8.4(c).
STATEMENT OF THE CASE AND FACTS
The Bar filed a petition for emergency suspension in Case No. SC20- 808 on June 5, 2020.
It alleged that Mr. Strems had violated numerous rules of the Florida Rules of Professional Conduct.
The focus of this first petition was misconduct during litigation by Mr. Strems and his associates.
It alleged several violations of Rule 4-5.1 relating to his duties to supervise the lawyers in his law firm and to take reasonable steps to assure those lawyers conformed to the Rules of Professional Conduct.
The Referee has recommended that Mr. Strems be found guilty of those violations and has recommended a two-year suspension.
That proceeding is still pending on review with Mr. Strems challenging the findings of guilt and with the Bar seeking disbarment.
This Court entered the emergency suspension order on June 9, 2020.
(ROR p.3).
The standard language of this order states that “Respondent is suspended from the practice of law until further order of this Court.”
But the standard language also states that he must “cease representing any clients after thirty days of this Court’s order.”
(A8).
It requires that he “immediately furnish a copy of Respondent’s suspension order to all clients.”
(A9).
It is undisputed that Mr. Strems was the sole owner of Strems Law Firm, a professional association.
This firm had expanded rapidly from 2016 to the time of the emergency suspension.
The estimates of the number of clients that needed to be furnished a copy of the suspension order varied between 5000 and 7000.
(T145, 319).
The professional association employed about 30 lawyers and had a much larger number of unlicensed employees at the time of the suspension.
(ROR p. 3).
These employees worked under Mr. Strems’ supervision in a highly computer-dependent structure of separate teams to on-board clients, handle claims before suit, and handle claims after suit.
Mr. Strems’ standard “contingency fee retainer agreement” defined “attorney” as “The Strems Law Firm, P.A.”
(A4).1
Mr. Strems’ signature was normally the signature on the agreement that was sent to the client by the on-board team because he was the only lawyer who was actually a member of the law firm.
(A7).
The contract does not specify any lawyer who will handle a matter, and no lawyer was in direct privity with the client under the terms of the contract.
But Mr. Strems recognized that he needed to notify all of these clients of his suspension.
STREMS MARKETING LETTER
1 During the final hearing, the fee agreement that was primarily discussed was the Evans contract, which is actually Respondent’s Exhibit 1 in SC20- 1739.
WAS IT FORGIVEN JPMORGAN/SBA?
When a member of a professional association becomes “legally disqualified to render such professional services,” that member must “sever all employment with, and financial interests in, such corporation.”
See § 621.10, Fla. Stat.
Thus, it is undisputed in this case that Mr. Strems had to sever his ties with the Strems Law Firm to comply fully with this Court’s order.
Mr. Strems and Strems Law Firm hired two professionals to assist in this process.
Mr. Scott K. Tozian, who is an attorney who specializes in representation of attorneys in disciplinary proceedings, was actually hired a month before this Court issued its suspension order.
(T290).
He recommended that Mr. Strems divest his interest in Strems Law Firm.
(T298).
He also recommended that Mr. Strems and the Strems Law Firm hire Mr. William Kalish to help with this process because Mr. Kalish is a tax lawyer who also has experience with compliance with the Florida Rules of Professional Conduct.
(T296-98, 406).
Mr. Kalish was retained to be the receiver to handle funds in the trust accounts and other accounts that Mr. Strems could no longer handle as a suspended lawyer.
(T415-17).
He was also retained to address the need to sever Mr. Strems ties to the Strems Law Firm.
(T407-410).
Mr. Kalish recommended that Mr. Strems divest himself of ownership in the professional association, and that the ownership should be placed “simultaneously” with three lawyers who had worked for the firm for at least a few years.
(T428-29, 500).
He did not recommend selling Mr. Strems’ stock directly to the three lawyers.
Instead, the full transfer of ownership was structured by having the professional association “redeem” Mr. Strems stock
(T426, TFB-Ex. B p. 84).
(TFB-Ex. B p. 84).
The professional association also issued new shares of stock that were simultaneously delivered to the three new owners of the association so that there would be no gap in ownership, membership, or in the officers required for the corporate entity.
(T428-29).
(TFB-Ex. B p. 6-3, 33-35, 70-77, 129-34)
A few days before this transaction, the professional association changed its name to eliminate the reference to Mr. Strems and to substitute the more generic,
(T431).
To be clear, the Bar is not challenging this structure as a method for Mr. Strems to transfer ownership from himself to the three new owners.
Although in the petition and at the hearing, the Bar questioned the authority of Mr. Strems, as a suspended lawyer, to take actions for Strems Law Firm during the 30-day window in which he could have performed limited representation of his clients, the Referee ruled against the Bar on that issue.
Likewise, the Bar challenged whether “immediate” required faster action on some steps, but the Referee ruled against the Bar on that issue as well.
The Bar is not challenging those rulings in this review.
The Bar is challenging whether this transaction is a “sale of a law practice” for purposes of the requirement to notify clients under Rule 4- 1.17(b).
Mr. Strems did not comply with those requirements.
The Referee considered the conflicting legal opinions of two experts, (ROR pp. 79-106), as well as the conflicting legal arguments of the lawyers, and concluded that this transaction did not qualify as a sale for purposes of Rule 4-1.17.
The Referee found that it was a “mere changing of the guard” that “did not implicate Rule 4-1.17 or constitute a ‘sale of a law firm’ (sic) for purposes of Rule 4-1.17.”
(ROR p. 118)
This issue will be further addressed in the argument section because the facts are not really in dispute and the question is one of law for this Court to decide.
When Mr. Strems received the suspension order, his employees began working to obtain an accurate mailing list for the many clients.
(T69).
By July 1, 2020, Mr. Strems had drafted a letter to send to the list of clients along with this Court’s order.
(TFB-Ex. C Contempt).
The one-page letter is an exhibit in evidence and in this brief’s appendix, but it is copied here as well:
Mr. Kalish testified that he had no role in creating this letter.
(T463).
He explained that, while he did not think it was compelled by the rules, he probably would have added language about the possibility of a client changing firms.
(T464).
He believed the clients “should know what’s going on.”
(T483).
As he explained:
But the proper way would be that the clients would also assent to any arrangements of the various lawyer too, I believe.
(T483).
Mr. Tozian testified that he did not believe his office drafted this letter, but he was relatively certain that he saw it before it went out.
(T359).
He did not think the letter was an issue.
But, suffice it to say, the letter was not a plain, simple statement:
I regret to inform you that I was suspended from the practice of law on June 9, 2020. To comply with the Florida Supreme Court’s order, attached to this letter is a copy of that suspension order.
Although I can no longer represent you and will no longer be a member of this law firm after July 9, efforts are being taken so that the lawyers who work for this law firm can continue to represent you. They will contact you in the very near future. You, of course, also have the right to retain other counsel if you choose to do so.
The Bar maintains that Mr. Strems’ letter was not full compliance with this Court’s order and that it provided misleading and incomplete information to the clients in an effort to keep them with the reconstituted law firm that was obligated to make payments to Mr. Strems for a decade.
The Referee rejected the Bar’s position and ultimately is recommending that this Court find Mr. Strems not guilty of contempt and not guilty of the several violations of the Rules of Professional Conduct that are inherent in the conduct alleged in the petition for contempt.
The Referee recommends that each party bear their own costs.
Similar to the Reports of Referee in SC20-842 and SC20-1739, the Referee’s lengthy report in this case ends with a hypothetical recommendation for a penalty if this Court rejects the Referee’s recommendation of not guilty.
That recommendation is either an admonishment or a public reprimand, “concurrent with the previously recommended sanctions,” and the payment of costs.
(ROR-164-165).
The Bar maintained in the petition and at the hearing that Mr. Strems violated this order because he did not file a motion to withdraw in any of the cases filed by his law firm.
(T10).
Instead, the reconstituted law firm filed a “notice of change of firm name and email addresses” that included the sentence:
“Any other Attorneys of Record should be removed as counsel of record on behalf of Plaintiff.”
(TFB-Ex. H Contempt).
Although this notice and the response of defense counsel resulted in stays and delays of litigation, these events occurred after Mr. Strems had withdrawn from the firm.
There is evidence of at least two cases that remained pending with Mr. Strems listed as counsel of record,
(T176, TFB-Ex-K & L Contempt).2
The Referee rejected the Bar’s position on this issue, and the Bar has chosen not to seek review of that decision.
It wishes to focus this review on the two issue that can arise in other emergency suspensions: whether such a transfer of a one-lawyer professional association is a sale for purposes of Rule 4.1-17, and whether the letter providing the suspension order complied with the suspension order and the Rules of Professional Conduct.
2 One case is Eduardo Mora v. United Property & Casualty Ins. Co., Case No. 17-010198 CA 13 in the 11th Circuit.
Judge Bokor held a hearing in that case on August 12, 2020.
The transcript on page 29 reflects that the judge was concerned that Mr. Strems was still counsel of record.
The transcript was used here in cross-examination, but is filed in SC20-806 as a portion of Composite Ex F.
SUMMARY OF THE ARGUMENT
Mr. Strems did not choose to build a law firm with a hierarchy of partners with years of experience working with younger associates on matters that had come into those partners due to their own professional experience.
He did not build a firm where clients often came to the firm because of the firm’s reputation but were then introduced to a partner who they agreed would represent them with the help of his or her associates and paralegals.
Instead, he built a one-man professional association with a maze of employees who handled matters for thousands of clients who had received an engagement letter signed by the only actual member of the law firm – Mr. Strems.
His was the only name in Strems Law Firm and his extensive marketing was based on that name. His clients were simply distributed among his pre-litigation teams and his litigation teams.
Thus, when he received his emergency suspension on June 9, 2020, he was faced with a serious problem. He had to leave the law firm immediately, no later than July 9. But the professional association was simply the corporate manifestation of Mr. Strems.
If he removed himself from the professional association, it ceased to exist.
He knew that if he sold his practice to another lawyer or law firm that Rule 4-1.17 would require that he notify his clients and give them the option to find another lawyer who was not burdened with the problems he had created for himself and his employees; a lawyer who actually had her practice organized so that she could talk to clients in person when needed.
That could dramatically reduce the value of the law practice he wanted to sell.
So instead of a direct sale, he accomplished precisely the same thing by issuing new stock for the three purchasers of his law practice, and then entering into a redemption agreement with the professional association so that the payments to him would be channeled through the law firm and not paid directly by the three lawyers.
By technically selling the stock in the professional association, the legal vessel that held the contracts with his clients, he claimed that the client’s professional relationship was unchanged with the professional association.
While the business relationship created by the thousands of contingency retainer agreements may have remained with the professional association, the clients ceased to have a professional relationship with Mr. Strems and that professional relationship was transferred to the three new members of the professional association.
The Florida Rules of Professional Conduct regulate the conduct of lawyers, not professional associations.
The redemption agreement may have been important to the IRS for tax purposes, but to fulfill his duties to his clients, he still needed to comply with Rule 4- 1.17.
But he did not comply with that rule.
Instead, in order to notify his clients of his suspension order, he sent them a letter, primarily in the third- person, telling them about the change in ownership and explaining that this change was why he would no longer be involved at the firm.
The Bar submits this letter is deceptive, a failure to communicate the information needed for informed consent, and a violation on the emergency suspension order.
Mr. Strems has argued that his actions are protected by advice of counsel. But this Court has clearly explained that this defense does not apply to compliance with the Florida Rules of Professional Conduct, as contrasted with some underlying legal issue with which a respondent is unversed.
In any event, the evidence in this record does not support this defense.
Because the Referee misunderstood the applicable law, this Court should reject the Referee’s recommendations and find Mr. Strems guilty of violating Rule 4-1.17, Rule 4-1-4, and Rule 4-8.4(c), and find him in contempt of the suspension order.
The sanction for these violations should be imposed with the other pending cases. Mr. Strems should be disbarred.
Two Untouchable Attorneys Who Stole Millions – Lovin’ Life in Florida
Meet Jordan Weinkle and Brian Abergel
THE DECISION-MAKING PROCESS IN A DISCIPLINARY PROCEEDING AND THE STANDARD OF REVIEW
“This Court’s standard of review in a contempt case is the same as that applicable to attorney discipline cases in general.”
The Florida Bar v. Bitterman, 33 So. 3d 686, 687 (Fla. 2010).
1. Issues of Law.
This Court reviews issue of law de novo when the only disagreement is whether the material facts constitute unethical conduct.
The Florida Bar v. Brownstein, 953 So. 2d 502, 510 (Fla. 2007);
The Florida Bar v. Pape, 918 So. 2d 240, 243 (Fla. 2005).
2. Findings of Fact
As this Court explained in The Florida Bar v. Picon, 205 So. 3d 759, 764 (Fla. 2016):
“This Court’s review of a referee’s findings of fact is limited.
If a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee.
The Florida Bar v. Frederick, 756 So. 2d 79, 86 (Fla. 2000).”
See also The Florida Bar v. Schwartz, 284 So. 3d 393, 396 (Fla. 2019);
The Florida Bar v. Parrish, 241 So. 3d 66, 72 (Fla. 2018);
The Florida Bar v. Vining, 721 So. 2d 1164, 1167 (Fla. 1998);
The Florida Bar v. Jordan, 705 So. 2d 1387, 1390 (Fla. 1998);
The Florida Bar v. Spann, 682 So. 2d 1070, 1073 (Fla. 1996).
3. Recommendation of Discipline
The Referee’s recommendation of discipline is subjected to greater review by this Court because of this Court’s ultimate responsibility to make that decision:
In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction.
See The Florida Bar v. Picon, 205 So. 3d 759, 765 (Fla. 2016) (citing The Florida Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989)).
At the same time, this Court will generally not second-guess the referee’s recommended discipline, as long as it has a reasonable basis in existing case law and the standards.
See The Florida Bar v. Alters, 260 So. 3d 72, 83 (Fla. 2018);
The Florida Bar v. De La Torre, 994 So. 2d 1032 (Fla. 2008).
The Florida Bar v. Altman, 294 So. 3d 844, 847 (Fla. 2020).
It is also important to consider that this Court has given notice to the members of the Bar that it is moving toward harsher sanctions than in the past.
See The Florida Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015).
In Rosenberg, this Court explained that since the decision in The Florida Bar v. Bloom, 632 So. 2d 1016 (Fla. 1994), the Court has moved toward imposing stricter sanctions for unethical and unprofessional conduct.
See also Altman at 847. As a result, case law prior to 2015 needs to be examined carefully to make certain that the application of sanctions in these earlier cases comports with current standards.
Liar Lawyer Catalina Azuero of https://t.co/T7RLHkNQUz response to the @TheFlaBar is finally here https://t.co/aEYD0WQ4jz and it’s nonsensical. @goodwinlaw @Law360 @reason @MotherJones @BLaw @ReutersLegal @WSJLawNews @DailyMail @chicagotribune @washingtonpost @MiamiHerald @ABC pic.twitter.com/NkpldvNNlH
— LawsInTexas (@lawsintexasusa) October 16, 2020
ARGUMENT
I.
The complete transfer of ownership of Strems Law Firm from Mr. Strems to three other attorneys is a “sale of law practice” under Rule 4-1.17 of the Florida Rules of Professional Conduct for which the clients were entitled to notice.
A. The central legal question within this issue, and the holding the Bar requests from this Court.
Until about forty years ago, a lawyer could sell the building from which she practiced, and the furniture and the law books connected to the practice, but the practice itself was regarded as a professional relationship that could not be sold.
In 1992, Florida adopted Rule 4-1.17, which was based on the recently developed ABA Model Rule 1.17.
See In re Amendment to Rules Regulating The Florida Bar, 605 So. 2d 252, 253 (Fla. 1992). It allowed a lawyer to sell an entire practice to one lawyer.
The rule conditioned this new ability to sell a practice on requirements that the clients be notified and be given an opportunity to consent to the substitution of counsel or to terminate the representation.
Then, as now, the comments began with the explanation that “[t]he practice of law is a profession, not merely a business,” and “clients are not commodities that can be purchased and sold at will.”
In 2006, the rule was amended to permit a sale of the entire practice or an entire area of a practice to one or more lawyers.
See In re Amendments to the Rules Regulating The Florida Bar, 933 So. 2d 417, 457 (Fla. 2006).
Although in the first sentence of the rule, this Court made clear that the item sold is a “law practice,” and a not “law firm,” because either a “lawyer” or a “law firm” could sell a “law practice,” the rule has never defined exactly what a “sale” entails when one is selling a law practice. There is no case law defining “sale” in this context.
It is not a rare occurrence that a one-lawyer law practice is organized and doing business as a professional association or other form of legal association authorized to practice law.
If Lawyer A is practicing without the use of such a separate legal entity, and she wishes to sell either the entire practice or an area of practice to another lawyer or to some other professional association, there is no question that Rule 4-1.17 applies.
Lawyer A’s “practice” is to the largest extent a collection of existing relationships with clients and the goodwill created by past and present clients.
Before Lawyer A sells her practice to Lawyer B or to “Lawyer B, P.A,” she must give notice to her clients because the clients are not “commodities.”
But Mr. Strems successfully argued to the Referee that he did not sell a practice;
the corporation merely redeemed his stock in the corporation
Because the corporation did not cease to exist and it continued to own the legal contracts with the clients that created the business relationship, he claimed he had no duty to communicate with his clients to give them notice of the total 100% transfer in ownership of the professional association and their right to retain new counsel.
But it is the complete transfer of his professional relationships with his clients to the new owners of the professional association that invokes Rule 4-1.17 of the Florida Rules of Professional Conduct.
The Bar submits that Rule 4-1.17(b) exists to protect the client’s rights.
It was not created by this Court to protect the commercial rights of a professional corporation.
The argument presented to, and accepted by, the Referee in this case would dramatically reduce the client’s right to be represented by a licensed lawyer of his or her choice, and to understand that he or she had that right.
No matter what legal entities are involved, when 100% of the control of a “legal practice” is transferred from one lawyer to another lawyer or group of lawyers, this is a sale of a “law practice” that invokes the right of the clients to be informed under Rule 4-1.17.
In this case, the Bar is asking this Court to hold that when a lawyer facing an emergency suspension transfers his entire practice for consideration to other lawyers, either directly from lawyer to lawyer, or indirectly through a transaction involving a transfer of a professional association that is used as the legal vessel containing the lawyer’s professional relationships with his clients, that transaction for consideration is a “sale of law practice,” requiring compliance with Rule 4-1.17(b).
B. Rule 4-1.17 governs the sale of a law practice, not the sale of a law firm.
Rule 4-1.17 plainly states that it applies to the sale of a law practice and not the sale of a law firm.
Its first three subsections state:
A lawyer or a law firm may sell or purchase a law practice, or an area of practice, including good will, provided that:
a) Sale of Practice or Area of Practice as an Entirety. The entire practice, or the entire area of practice, is sold to 1 or more lawyers or law firms authorized to practice law in Florida.
b) Notice to Clients. Written notice is served by certified mail, return receipt requested, on each of the seller’s clients of:
1) The proposed sale
2) The client’s right to retain counsel;
and
3) The fact that the client’s consent to the substitution of counsel will be presumed if the client does not object within 30 days after being served with notice.
The “practice” in this context includes the professional relationship with the clients and the good will that has been created over the life of the practice.
The purchaser may keep some or all of the employees of the predecessor lawyer and may be purchasing physical or computer files and programs that help service the clients.
But the “practice” has little value without the ongoing professional relationship with the clients.
The adoption of this rule ended the complete prohibition on selling a practice, but the compromise requires the lawyer benefiting from the sale to take very specific steps to protect the clients.
Admittedly, a practice is normally sold in a more direct sale of the business relationship than occurred in this case. But this is not a rule about the taxation of the sale or the basis for a new asset.
The clients had an established attorney-client relationship with Mr. Strems.
He was the only lawyer who was an actual member of the law firm, and he was also the lawyer signing the contracts and making first communication with the clients.
It was his credentials in all the advertising that gave them assurance (albeit inaccurately) that their claims would be carefully supervised by a very experienced lawyer.
It is lawyers who must obey the Rules of Professional Responsibility, not professional associations.
It is the lawyer who has skill as an advocate, not the professional association. The lawyer may delegate some of the work on a matter to an employed associate or even a paralegal, especially with the client’s knowledge and consent, but the lawyer is still the responsible supervisor.
The corporation cannot assume that professional function.
By the entire transfer of his practice to the three new owners, Mr. Strems was attempting to transfer that attorney-client relationship without providing the notice required by Rule 4-1.17(b).
He was not telling his clients that they had the right to find another lawyer under these circumstances.
C. The Referee misunderstood the concept of a sale of the legal practice, in part, because of the language of Mr. Strems’ standard “Contingency Fee Retainer Agreement.”
As Rule 4-5.8(a) explains, “the contract for legal services creates a legal relationship between the client and law firm and between the client and individual members of the law firm. . . .”
It further explains that “[n]othing in these rules creates or defines those relationships.”
In other words, the Florida Rules of Professional Conduct address the professional relationship between a lawyer and a client – not the business relationship between the client and the law firm.
Admittedly, there is some overlap between those relationships, especially in the area of reasonable fees. But the Florida Rules of Professional Conduct exist to protect clients and to protect the reputation of the profession of law and the courts that profession serves.
They are not trumped by the business interests of the lawyer or the law firm.
The standard “Contingency Fee Retainer Agreement” utilized by Mr. Strems was odd in a number of respects.3
But for purposes of this review, the major oddity is its use of the word “Attorney” as the shorthand reference for “The Strems Law Firm P.A.” (A. 4-7).
The contract’s heading does not reference the law firm, but the first line of the contract explains that the client is retaining and employing THE STREMS LAW FIRM, P.A. (hereinafter “Attorney”).
Mr. Strems signs the contract on the line for “Attorney” to sign.
The word “Attorney” occurs throughout the document.
This retainer agreement does not retain “Lawyer X and Lawyer X, P.A.’ In fact the body of the contract contains no reference to “lawyer” or to the word “Attorney” meaning anything except the professional association.
The contract authorizes “Attorney” to file a lawsuit for the client, but there is no discussion of what lawyer, other than Mr. Strems, will represent the client.
In this bulk practice, the client is represented by a pre-litigation team, and if necessary, by a subsequent litigation team. But the contract does not specify the team, much less the lawyers in the team.
The client is given no right to select a particular lawyer.
3 Different portions of the contact create issues addressed in SC20-842 and SC20-1739.
The required “Statement of Client’s Rights” is, of course, appended to the firm’s contract.
It discusses “lawyers.”
It explains in paragraph 3 that the client has the right to know about a “lawyer’s education, training and experience” before hiring a lawyer.
The contract has an auto-fill checkmark explaining that the client understands, but the only lawyer the client typically knows about when entering into the contract is Mr. Strems.
This contract is undoubtedly owned by the professional association.
As a business relationship, it presumably continues to be owned by the professional association when 100% of that entity is transferred from one lawyer to another lawyer or group of lawyers.
But calling the professional association “Attorney” in the contract does not make that association a “lawyer” for purposes of the Florida Rules of Professional Conduct.
The question here is about the professional relationship between the client and the lawyer—and the duty to communicate with a client when the lawyer who signs the retainer agreement can no longer be in the professional relationship with his client because he has sold the law firm that owns the business relationship.
Mr Strems argued, and the Referee concluded, that the unchanged business relationship through the ownership of the contract by the professional association (when the entire practice is transferred from one lawyer to another group of lawyers) prevents the operation of Rule 4-1.17.
Respectfully, that is simply an error of law.
It conflates the business relationship with the professional relationship to the detriment of the client and to the detriment of the judicial system.
D. The fact that the lawyers purchasing the practice were three of the many lawyers employed by the professional association did not alter the requirements of Rule 4-1.17.
The three attorneys who owned all the stock, and thus the “practice” after the simultaneous closing were Orlando Romero, Hunter Patterson, and Christopher Narchet.
(T122).
Mr. Romero has since died.
(T160).
Mr. Narchet only became employed by the Strems Law Firm in its Coral Gables office in July 2017.
(T116).
He never worked on one of the pre-litigation teams.
(T117).
His first litigation job was as a member of one of the Strems litigation teams.
(T123).
He was promoted to a team leader on one of the litigation teams prior to purchasing his interest in the law firm.
(T118).
He explained that the three purchasers “decided that the best course of action for our clients was to obviously maintain the same representation for them.”
(T120).
He further said:
“Obviously, the choice was left in their (the clients’) hands as well, you know, whether they wished to continue with our services as their counsel or not.”
(T121).
But he does not claim they reached out to the thousands of clients to discuss this with them.
Thus, Mr. Strems did not provide notice to his clients under Rule 4- 1.17(b) of their rights, and the new owners unilaterally decided the best interest of the clients as well.
But the clients may not have wished to be represented by a lawyer with so little experience as Mr. Narchet.
They also may have discovered that the insurance company was not denying their claim and they could resolve it themselves without paying 25% of the undisputed amounts to the law firm.
Respectfully, keeping the clients with the new owners of the law firm was in the best interests of Mr. Strems and the new owners, but in light of the conditions that brought on the emergency suspension and the methods used to sign up some of the clients, the clients may very well have been better off to select different representation if that option had been presented to them with fair disclosure.
The Bar submits that there is no exception to Rule 4-1.17(b) when the sale is to three lawyers currently employed by the professional association.
Admittedly, at least a few of these clients were involved in litigation in which one of the new owners may have been their lead attorney of record.
But even then, the clients had entered into engagements to be represented by the Strems Law Firm when the only managing and supervising lawyer was Mr. Strems.
The many clients whose files were in pre-litigation would have had no prior contact with the new owners.
Whether the new attorneys in charge of managing and supervising the employees of the law firm had been employees of the firm or had come from outside the law firm, the clients still had a right to be told that they were no longer in privity with Mr. Strems’ law firm, but with a reconstituted law firm with entirely new owners.
Mr. Strems argued to the Referee that the position of the Bar would mean the Rule 4-1.17(b) would need to be invoked every time a partner left a law firm with multiple members.
That really is not a fair reading of the rule.
The rule covers the sale of an “entire practice” or an “entire area of practice.”
When new partners buy their shares in an existing law firm with multiple shareholders or old partners sell their shares, the event is normally not a purchase or sale of even an “area” of the practice.
The Bar is only arguing here that a sale occurs when there is a 100% change in the ownership of the professional association.
The disclosure requirements of Rule 4.1-17 are actually just an extension of the duty to communicate with your client under Rule 4.1-4.
In the remaining thirty days before Mr. Strems could no longer represent a client, he still had a duty to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
See Rule 4-1.4(b).
As we will see in the next issue, he did not accomplish that requirement.
II.
Mr. Strems’ July 1, 2020, letter was not the notice required by Rule 4-1.17, but rather was a document providing misleading information for Mr. Strems’ benefit.
Mr. Strems did not begin sending out notices of his suspension in June to clients who had an immediate need for this information.
For example, the clients who had just sent in their signed retainers and had not been processed by the on-boarding team were not sent notice of his suspension prior to the completion of that process.
Instead, that team simply continued to send out Mr. Strems’ standard notice of representation to the insurance carriers.
(T803) (TFB-EX- Composite A Contempt) .
When he did provide notice to the clients, Mr. Strems did not send out a personal letter simply informing each client that he had been suspended by the Florida Supreme Court and providing a copy of the suspension order.
Instead, he mailed out a letter about “Your Insurance Claim” to “Dear Client.”
(TFB-Ex. C Contempt).
The letter begins with a one-sentence paragraph:
“Our work continues on your file, but we write this letter to advise of changes at the law firm and matters regarding me.”
Thus, although the letter is going to tell the client about his “matters,” it is carefully crafted as a letter from the whole law firm – from us, not from me.
The next paragraph explains that the “ownership” of the law firm is changing (even though this is not a sale).
It is changing by “advancing three of our present lawyers as shareholders.”
Mr. Strems explains that he will “no longer be the owner of the law firm or involved at the firm because of this change of ownership.”
But the truth is that he will no longer be involved because he has been suspended and he must divest himself of ownership in the firm because he has been suspended.
The next paragraph explains that the clients claim has been handled by a “specifically assigned attorney at the law firm and support staff,” which will not be affected by these changes.
That lawyer is not identified in the letter.
Mr. Strems claims that he had not been “directly responsible for your matter,” even though he had signed the contingency agreement with them and was the only shareholder in the firm.
He was not “directly” involved in the sense that he had delegated the matter to his employees, but he had been suspended because of the evidence that he had mismanaged those employees.
Despite the reasons for his suspension, he assures his clients that “the lawyers responsible for your matter will continue without any change to seek the best settlement or judgment for your case.”
(emphasis supplied).
Then, in the middle of the document in a paragraph containing one compound sentence, he states: “I will no longer be involved in the firm and I have been suspended from the practice of law, as per the attached Order.”
The next paragraph explains that the “new name of the firm will be The Property Advocates, P.A. and if you see that name on further papers we send to you there is no reason for your concern.”
(A3).
Mr. Strems, of course is not part of that “we.”
Instead of telling the client that they may seek to retain other counsel in light of his suspension and the sale of the firm, he tells them “there is no reason for your concern.”
The next paragraph says:
“Again, we greatly value your confidence in us as your attorneys to complete your claim and get the best result for you possible for the damage to your house.”
This letter is signed only by Scot Strems, and it is not signed by him for Strems Law Firm, like the first letter he sent to the clients.
(A3).
But he will not be completing their claims and negotiating the final settlement amounts.
Then the next two paragraphs state:
“We will stay in touch over the next few weeks and bring you up to date on our continuing efforts on your behalf.”
“Please feel free to contact our office with any questions you may have.”
Of course, Mr. Strems will not and cannot stay in touch with them.
And one of the reasons that Mr. Strems was suspended was because it was so difficult to get through to a lawyer if you contacted the office.
Ms. Mendizabal, who had worked with the firm since 2017 and was the managing attorney in the Miami office, explained that the firm had the same protocol for communicating with clients after this letter was sent out as before.
(T61, 64, 84).
They had a separate “team” that answered the telephones and a call center to handle overflows.
(T84).
Mr. Strems knew when he signed this letter that the firm was not structured to allow these clients to call the unidentified lawyer “specifically assigned” to their case to obtain the information needed to make an informed decision about staying with the law firm.
The Bar maintains that, once Mr. Strems decided not to send a simple letter notifying his clients of his suspension, but rather decided to send a firm letter announcing the complete change in ownership of the law practice, he needed to comply with Rule 4-1.17(b).
He needed to tell his clients that they had a right to retain other counsel.
Instead, he used the letter as a marketing tool for the new owners to assure that they would be able to keep those clients and receive the contingency fees needed to fund his buy-out.
Once Mr. Strems decided to inform his clients of the status of representation, under Rule 4-1.4(a), entitled “Informing Client of Status of Representation,” he needed to provide the clients with accurate information needed for the client to make an informed decision.
Under Rule 4-1.4(b), he needed to “explain [the] matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
He knowingly sent out a letter that did not fulfill these requirements. He intentionally avoided providing a full disclosure for his own self-interest.
Instead of recognizing the problems within the firm and sharing with the clients that he had allowed the firm to grow too quickly, that the firm had problems communicating with its clients, and that it had difficulty timely complying with discovery rules and court orders—and perhaps explaining how the new owners planned to address these problems – he told them that things would go on “without any change” and that there was “no reason for your concern.”
Under Rule 4-8.4(c), a lawyer has an obligation not to engage in conduct involving dishonesty, deceit, or misrepresentation.
This letter is not honest with his clients.
It misrepresented why he would no longer be the owner of the law firm or involved at the firm.
It misrepresented many things by omission that he needed to explain once he decided to send the content of this letter to his clients.
He did this in an effort to assure that the clients stayed with the new lawyers who now owned the law practice.
There is no factual dispute about the content of this letter or the facts surrounding the sending of this letter.
And Mr. Kalish and Mr. Tozian did not write this letter or provide any advance opinion that this was an appropriate letter – even assuming that “advice of counsel” has become a defense for this type of violation.
But the Referee nevertheless concluded that these facts did not violate these rules.
(ROR 149-150).
The Bar submits that the Referee made an error in law when she concluded that these facts violate none of the applicable rules.
III.
“Advice of Counsel” should not be a defense when the advice concerns the Rules themselves and not some underlying area of law with which the lawyer is unfamiliar.
Mr. Strems repeatedly emphasized to the Referee that he had relied upon the advice of the two lawyers he hired to assist with the suspension order.
Just like he wished to blame his mismanagement on his associates in Case No. SC20-808, he seeks to shift responsibility for complying with the Florida Rules of Professional Conduct to his lawyers.
He is seeking to expand the scope of this Court’s recent decision in The Florida Bar v. Herman, 297 So. 3d 516 (Fla. 2020), which recognized a very limited version of the advice of counsel defense.
In Herman, the issue concerned the truthfulness of Mr. Herman’s financial disclosures in his bankruptcy filings.
Mr. Herman was not a bankruptcy lawyer, and he had experienced bankruptcy counsel representing him in that proceeding.
His disclosures had been thoroughly discussed with his lawyer and the information Mr. Herman provided to his lawyer was accurate and sufficient for his lawyer to make a legal decision for his client.
The bankruptcy court found that the filings were so inaccurate as to warrant a denial of discharge, but this Court explained:
“To establish that Herman is guilty of misconduct, the Bar would have to prove by clear and convincing evidence not only that Herman’s bankruptcy disclosures were false or misleading, but also that Herman knew that they were false or misleading.”
Id. at 520.
This Court decided that it was the advice of his counsel about bankruptcy law that kept Mr. Herman from knowing his answers were misleading.
But in Herman this Court explained:
The reason an advice of counsel defense is usually unavailable in Bar discipline proceedings is that the Bar rules themselves charge Florida lawyers with knowledge of the rules and of “the standards of ethical and professional conduct prescribed by this court.”
R. Regulating Fla. Bar 3-4.1.
But here, Herman does not claim that he relied on the advice of counsel as to the meaning and requirements of any Bar rule.
Nor does this case have anything to do with Herman’s work as an attorney serving clients
Id. at 520.
Thus, Herman is not precedent for the proposition that Mr. Strems can hire lawyers to handle his suspension order and wash his hands of his own need to comply with the order and the rules.
Expanding Herman to this context would create the most slippery of slopes.
The responsibility for each lawyer in Florida to comply with the Florida Rules of Professional Conduct must not be a delegable duty.
The Bar recognizes that reliance upon the formal opinion of a lawyer who specializes in Bar matters, after complete and accurate disclosure, might very well be a mitigating factor for conduct committed in reliance upon that opinion.
See The Florida Bar v. St. Louis, 967 So. 2d 108, 118 (Fla. 2007)
(“Thus, a defense based on advice of counsel is not available to respondents in Florida Bar discipline cases unless specifically provided for in a rule or considered as a matter in mitigation.”).
But the notion that a lawyer can be exempt from the rules because he may have discussed aspects of the rules with the counsel selling his practice to other lawyers by means of a sophisticated corporate transaction is a dangerous and unwarranted expansion of Herman.
Even if advice of counsel were expanded to these circumstances, Mr. Strems did not establish this defense.
The evidence related to this issue is summarized in the following paragraphs.
The Evidence.
Mr. Strems retained Mr. Tozian, an experienced lawyer who regularly defends lawyers in disciplinary proceedings, to assist him about a month before this Court entered the emergency suspension order.
(T296).
Because Mr. Tozian was concerned about performing the transfer of the law firm correctly, Mr. Tozian advised Mr. Strems to retain a second lawyer, Mr. Kalish, who is a tax and transaction lawyer.
(T298-299).
Mr. Tozian explained that he recommended this, in part, because had had a prior case where the Bar had questioned the method by which the transfer occurred.
(T299).
Mr. Tozian contended in his testimony that Rule 4-1.17(b) did not apply in this case.
(T374).
He did not recall if he specifically discussed Rule 4- 1.17(b) with Mr. Strems.
(T379).
But he thought it was discussed that this was equivalent to the death of a lawyer.4
He explained:
“We looked at it as one person in the firm is gone, and the rest of the firm was going to soldier on.”
(T378). He did not see the transaction they created to be a “traditional sale.”
(T378). Instead, he explained:
“I mean, if you’ve got a firm with 30
4 The comments to Rule 4-1.17 explain that “[t]his rules applies, among other situations, to the sale of a law practice by representatives of a lawyer who is deceased.”
people and one person is out of the mix, whether they die or they’re suspended or they decide that selling shoes at Nordstrom’s would be a better vocation, it doesn’t really matter how the person left the firm.”
(T378).
He did not seem to take into consideration that only one lawyer in this case owned the firm.
He saw the transaction as “a much more efficient way to divest Mr. Strems of his interest – and , you know, a client can fire you at any time.”
(T379-380).
He personally thought the only time a lawyer has a duty to disclose to a client that they have the right to retain another lawyer was when the client was “unhappy with the decision-making” or “unhappy with the results.”
(T382)
On redirect, in a series of leading questions, Mr. Tozian testified that he approved of the transaction as fashioned by Mr. Kalish “[t]o the extent that I understood it and to the extent to which the Rules Regulating the Florida Bar applied.”
(T383).
He confirmed that he had advised Mr. Strems that “the notification was done in compliance with the Supreme Court’s order.”
(T384).
Mr. William Kalish testified that he was retained by Mr. Strems and the Strems Law Firm in June 2020.
(T403).
One of his roles was to serve as the receiver for the trust account issues.
(T413).
That role is not significant to this review.
He also provided advice to Mr. Strems and Strems Law Firm concerning compliance with the suspension order.
(T408).
The three employed attorneys who purchased the stock for the reconstituted law firm were not represented by him.
(T408-409).
He has experience providing tax and transactional advice to clients, especially lawyers and law firms.
(T411).
He was the main person involved in deciding to use the device of the redemption agreement and the newly issued stock for this transfer because, in his opinion, it avoided issues of quantum meruit if a new law firm took over from Strems Law Firm.
(T415-416).
Even though Mr. Strems claimed not to have been directly involved in these cases, Mr. Kalish was concerned that other approaches would involve 7500 quantum meruit decisions, which the redemption agreement avoided by buying Mr. Strems’ stock for a fair market value of
(T419, 426-427).
He testified that Mr. Strems was following his advice.
(T416-417).
In his opinion, every part of his advice to Mr. Strems was in the best interests of the clients.
(T419).
He understood that Rule 4-1.17 would require giving notice to the clients that they were free to get another lawyer, but he believed “that could cause a disruption.”
(T420).
He believed his solution to the transfer of ownership was not a “sale” and that it did not require compliance with Rule 4-1.17.
(T421).
He reasoned that, as a matter of corporate law, the law firm was not sold;
it was renamed and the stockholders were traded out.
(T422- 424).
He opined that a redemption was not a sale.
(T424).
His opinion appears to be influenced by his training as a tax lawyer, and he was not asked whether the transaction was a sale of a “law practice” for purposes of considering the interests of the clients.
(T424-425).
In answer to a question by the Referee, he admitted that “it is conceivable if read as a sale, that it would be governed by Rule 1.17.”
(T425).
But he seemed to believe, if that were true, it would apply every time that Mr. Strems hired a new lawyer as an employee.
(T425).
Mr. Kalish reasoned that, if the sale of stock and the redemption were simultaneous, there was no disruption in the professional association, and since the clients probably regarded the employed lawyer who was currently the team leader assigned to their case as their lawyer, it was not a sale that required notice to the clients of their right to retain alternate counsel.
(428- 429).
He seemed to equate this with a situation where existing shareholders invite a practicing lawyer to join the firm.
(T437).
He read from his affidavit explaining that Rule 4-1.17 did not apply because this did not involve “two separate entities engaged in a transfer of clients.”
(T452, R-Ex. 12).
As explained earlier in the Statement of Facts, Mr. Kalish testified that he had no role in creating the July 1 letter.
(T463).
He explained that, while he did not think it was compelled by the rules, he probably would have added language about the possibility of changing firms.
(T464).
He believed the clients “should know what’s going on.”
(T483).
As he explained:
But the proper way would be that the clients would also assent to any arrangements of the various lawyer too, I believe.
The Law
It is clear that Mr. Strems never asked either lawyer for a formal opinion on this. Mr. Tozian did not fully appreciate the fact that Mr. Strems was the only member of the professional association, and he equated this situation with a more typical law firm with multiple partners or shareholders.
Mr. Kalish would have advised Mr. Strems to explain the arrangement to the clients in the July 1 letter, if asked.
Thus, the evidence on advice of counsel is not a basis to find that Mr. Strems did not violate the specific rules of conduct and the suspension order in this proceeding.
The evidence may not even support a mitigating factor when determining the sanction.
A Comment on the two experts
It is not uncommon in Bar proceedings for lawyers to provide expert testimony that includes explanations of some area of specialized law.
For example, in the Herman case both sides presented experts on bankruptcy law.
This type of testimony would usually be inadmissible under the formal rules of evidence in a typical trial.
See Lee Cnty. v. Barnett Banks, Inc., 711 So. 2d 34, 34 (Fla. 2d DCA 1997)
(“Expert testimony is not admissible concerning a question of law. Statutory construction is a legal determination to be made by the trial judge, with the assistance of counsels’ legal arguments, not by way of ‘expert opinion.’”).
But in this case, Mr. Strems retained Professor Timothy P. Chinaris as an expert on the Florida Rules of Professional Conduct, and the Bar responded by hiring Professor Anthony Alfieri.
(T575-76, 722).
Predictably, Professor Chinaris provided expert opinions on these rules that helped Mr. Strems, and Professor Alfieri provided opinions that helped the Bar.
Professor Chinaris believed that Rule 4-1.17 applied only to transfers for consideration to lawyers “outside” the firm, and he concluded that the three employed associates were inside the firm such that a 100% transfer to them did not invoke the rule.
(R-Ex-9, p. 4).
He supported his interpretation not with the text of the rule, but with a comment discussing the fact that attorney-client privilege did not bar preliminary discussions involved in such a transaction with an outside lawyer.
The Referee adopted this legal reasoning.
(ROR p.112-114).
But the comment does not suggest that the rule applies only when there might be an attorney-client privilege issue.
Instead, the rule is drafted to protect the client and to make sure the client is not treated like a “commodity.”
Professor Chinaris’s opinion as a forensic expert does not seem to give the clients their due.
Professor Alfieri had a longer report and a longer explanation as to why he believed that Rule 4-1.17 did apply in this context.
(TFB-Ex. 1 p. 27).
But the Florida Rules of Professional Conduct are simply a subset of rules of law.
Lawyers are called upon to read them carefully and obey them.
This Court reviews the rules de novo to determine whether they apply to a set of facts or not.
See The Florida Bar v. Brownstein, 953 So. 2d 502, 510 (Fla. 2007).
The undersigned frankly questions whether this “testimony” by experts, not addressing issues of fact, but rather addressing legal conclusions that are reviewed de novo by this Court, is a proper subject for testimony.
It reads more like closing arguments from the witness stand than evidence.
It might be better for this Court simply to indicate that such testimony is not a necessary or proper part of a disciplinary proceeding.
IV.
Mr. Strems should be found guilty of contempt and of violations of the Florida Rules of Professional Conduct.
This Court has inherent contempt powers that, in this context, are expressly incorporated into the general rules of procedure for disciplinary proceedings.
See The Florida Bar v. Ross, 732 So. 2d 1037, 1041 (Fla. 1998); Rule 3-7.11(f).
The Bar recognizes that a finding of guilt in this contempt proceeding requires proof that Mr. Strems “intentionally and willfully” violated the terms of the order.
See The Florida Bar v. Forrester, 916 So.2d 647, 650 (Fla. 2005).
A violation does not require Mr. Strems to admit his guilt, and it can be established by circumstantial evidence.
Id. at 652.
The standard emergency suspension order entered by this Court on June 9, 2020, required Mr. Strems “to immediately furnish a copy of Respondent’s suspension order to all clients.”
The Referee found that the delay until July 1, 2020, to send out a copy of the order was not such a long delay as to violate the requirement of immediacy, and the Bar is not challenging that ruling in this review.
The Referee seemed to believe that the actual content of Mr. Strems’ letter sending a copy of suspension order to his clients would be of no concern to this Court so long as it attached a copy of his suspension order.
But the Bar submits that any licensed lawyer would know that an emergency suspension order is an exceptional and very serious matter.
The order to furnish a copy of the suspension order to clients does not mandate the precise method by which the order is delivered, but any lawyer would know that it must be provided in a manner that is not deceptive.
Given the requirements of Rule 4-1.4 that a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation,” the requirement to furnish a copy of the suspension order to a client normally includes a concomitant duty to accurately explain to the client the legal effect of this order.
But Mr. Strems sandwiched his statement revealing his suspension to his clients in the middle of a marketing letter for the reconstituted law firm, written mostly in the third person, assuring them that another lawyer would continue for them ”without any change.”
He told his clients they had no reason for concern, despite the concerns that caused this Court to enter the emergency suspension.
He intermingled the notice of his suspension with the law firm’s explanation, in the third person, of the total transfer of ownership to three unnamed attorneys.
The Bar submits that the undisputed facts in this case demonstrate an intentional and willful disregard for this Court’s order to provide the order to the client.
That intentional disregard was designed to protect Mr. Strems’ buy-out.
Even if this Court concludes that the conduct is not violative of its order, as explained earlier, the evidence clearly demonstrates a violation of Rule 4-1.4 (communication), Rule 4-1.17(b) (failure to provide the proper notice of the sale), and Rule 4-8.4(c) (misrepresentation to client).
The Petition expressly discussed the violation of Rule 4-1.17.
Rule 4-1.4 and Rule 4-8.4 were not expressly discussed in the petition.
But the failures to communicate with the clients and the misrepresentations to the client were directly related to what was and was not communicated to clients as a result of the suspension order.
They were discussed in Professor Alfieri’s report, which was disclosed prior to the final hearing.
(TFB-Ex. A).
Professor Chinaris discussed both of these violations in his direct examination prior to Professor Alfieri’s testimony.
(T629-631, 642-643).
Thus, the two additional violations were “within the scope of the conduct and rule violations specifically charged.”
The Florida Bar v. Fredericks, 731 So. 2d 1249, 1254 (Fla. 1999).
For purposes of due process, Mr. Strems had notice and had an opportunity to be heard. Paraphrasing Fredericks, “because [Mr. Strems] was made aware of the conduct alleged by the Bar to be unethical and had the opportunity to be heard as to this conduct, there was no violation of due process.”
Id. at 1254.
The Referee’s recommendations on these violations were based primarily on her legal determination that the transaction was not a sale.
The facts of what was and was not communicated to the clients in the letter are undisputed.
The Bar submits that the letter delivering the suspension order contained misrepresentations designed to secure a client base for the reconstituted law firm, and it failed to communicate both the right to retain other counsel and the circumstances that might warrant the client to consider that option.
Mr. Strems should be found guilty of these three violations.
V.
The Court should either impose the sanction in this case in conjunction with Case No. SC20-806, Case No. SC20-842, and Case No. SC20-1739, or the issue of the proper sanction should be remanded to the Referee for consideration following this Court’s determination of guilt.
The Referee is recommending that the sanction in this case be “concurrent” with the sanction in the other pending cases.
The Bar agrees with this recommendation to the extent that it suggests that this Court should simply impose a single sanction for the conduct in all three cases.
See The Florida Bar v. Inglis, 660 So. 2d 697 (Fla. 1995);
The Florida Bar v. Greenspahn, 396 So. 2d 182, 183 (Fla. 1981)
(“Under the peculiar facts of this matter, however, we determine the appropriate discipline from the totality of the conduct as though all of the charges had been presented to us in one proceeding.”).
The Bar is already recommending disbarment in those three cases. These violations would add incrementally to the sanction for those cases.
The four proceedings collectively demonstrate a lawyer who devised improper methods to obtain homeowners’ signatures on 25% contingency fee contracts without any direct discussions with the client about a need for representation and often before the homeowners had an objective reason to believe they needed an attorney to handle their insurance claims.
Then he created a law firm structure that did not adequately communicate with the clients and could not handle the onslaught of lawsuits that he filed, leading to sanctions and Kozel orders against the lawyers he employed.
When it came time for settlement, relying on the improper language of his contract, he negotiated global settlements that maximized his payment, and minimized the clients’ returns.
And when this Court entered its emergency suspension, rather than sending his clients a straight-forward letter explaining his suspension, he sent a letter from the law firm explaining that there should be no reason for them to be concerned, and that he would no longer be involved at the firm because other lawyers had become its shareholders.
He did not tell the clients the whole story or tell them they had a right to retain new counsel.
He did not tell them this information because then there could be insufficient money to pay his buy-out from the firm.
Mr. Strems’ numerous, strategic violations of the Florida Rules of Professional Conduct warrant permanent disbarment.
However, if the Court decides that a separate sanction is appropriate in this case, this Court should not rely upon the Referee’s hypothetical evaluation and should remand for a proper sanction hearing.
The Bar submits that there is a dishonest or selfish motive associated with the misconduct in this proceeding that would warrant more than a public reprimand – especially if the three pending cases were treated as prior disciplinary offenses.
See §3.2(b) (1) & (2), Florida’s Standards for Imposing Lawyer Sanctions;
The Florida Bar v. Patterson, SC19-2070, 2021 WL 5832861, at *6 (Fla. 2021) (overlapping prior discipline);
The Florida Bar v. Koepke, 327 So.3d 788, 789 (Fla. 2021) (disbarment for first disciplinary violation).
CONCLUSION
This Court should reject the Referee’s recommendation for findings of not guilty on the charge of contempt for the reasons explained in this brief.
It should find Mr. Strems guilty of contempt, as well as guilty of violations of Rules 4-1.4, 4-1.17, and 4-8.4(c).
It should impose a combined sanction in this proceeding and the three pending proceedings of permanent disbarment.
It should award the Bar its costs.
Respectfully submitted,
/s/ Chris W. Altenbernd
Chris W. Altenbernd, Esq.
Florida Bar No: 197394
Email: service-caltenbernd@bankerlopez.com
BANKER LOPEZ GASSLER P.A.
501 E. Kennedy Blvd., Suite 1700
Tampa, FL 33602
(813) 221-1500; Fax No: (813) 222-3066
Bankers
When the World’s Bankers and Governments Are Behavin’ Like Thieves and Criminals, It Really Is Time to Object, Vociferously
The appalling greed and corruption is playing out live since 2008 and without any accountability to the people. One Percenters are completely immune and laughing At You.
Ukrainian who made appearance in Trump impeachment saga accused by U.S. of stealing, laundering billions
AUG 6, 2020 | REPUBLISHED BY LIT: MAY 17, 2022
The Justice Department on Thursday accused a Ukrainian oligarch who has been considered an ally of Ukraine’s president of stealing billions of dollars from a bank he once owned, then using a vast array of companies to launder that money in the United States and all over the world.
In a civil forfeiture complaint seeking to seize commercial properties in Kentucky and Texas, the Justice Department alleged that Ihor Kolomoisky and his business partner, Gennadiy Boholiubov, stole so much from PrivatBank that Ukraine’s national bank had to give the institution a $5.5 billion bailout “to stave off economic crisis for the whole country.”
Kolomoisky, one of Ukraine’s richest men, has ties to Ukrainian President Volodymyr Zelensky, and he played a role in the events that led to President Trump’s impeachment last year. He made a fortune in the rough-and-tumble capitalism that swept Ukraine after the Soviet Union’s collapse, amassing assets including airlines and financial institutions, and created a larger-than-life image for himself, going by the nickname “Benya,” and keeping a shark aquarium in his office.
Kolomoisky and Boholiubov were the two major owners of PrivatBank before it was nationalized in response to the fraud, the Justice Department said, and the men basically used it as a personal account to build a business empire in the United States. They requested money from PrivatBank — which they always received because they were owners — then moved the funds through a network of companies to “thoroughly disguise their nature, source, ownership, and control,” the Justice Department alleged.
Experts have expressed increasing concern that U.S. real estate — including factories and facilities important to American industry — has become a magnet for foreign money, including proceeds of criminal activities abroad. Among Kolomoisky’s and Boholiubov’s purchases were more than 5 million square feet of commercial real estate in Ohio; steel plants in Kentucky, West Virginia and Michigan; a cellphone manufacturing plant in Illinois; and commercial real estate in Texas, the Justice Department alleged. The forfeiture complaints sought to seize a roughly 19.5-acre office park in Dallas and the PNC Plaza building in Louisville.
Michael J. Sullivan, a lawyer for Kolomoisky, said in an email: “Mr. Kolomoisky emphatically denies the allegations in the complaints filed by the Department of Justice.” The allegations, which are not criminal charges, are similar to those in a lawsuit filed by the bank in a Delaware court. A lawyer for Boholiubov did not reply to an email seeking comment.
In a statement written in Russian, Kolomoisky said all the money used to purchase the U.S. properties was his own, received through a deal made with a mining company in 2007 and 2008 and from other businesses that banked with Privatbank.
Kolomoisky also has long been facing a criminal probe by the U.S. attorney’s office in Cleveland for possible money laundering. As a part of that case, the FBI raided the office of Optima Management Group in downtown Cleveland on Tuesday, as well as an Optima office in the Southeast Financial Center building in Miami.
In court documents, the Justice Department alleged Thursday that two Miami-based business associates of Kolomoisky and Boholiubov’s — Mordechai Korf and Uriel Laber — helped acquire and manage the oligarchs’ holdings in the United States, which often bear some version of the name “Optima.” Optima Ventures at one point became the “largest holder of commercial real estate in Cleveland,” using stolen funds to buy major downtown office buildings and a hotel, the Justice Department alleged.
Last year, Marc Kasowitz, a New York lawyer who also represents Trump, signed on to represent Kolomoisky and Boholiubov in the Delaware case. He did not immediately respond to a request for comment Thursday.
Under Ukraine’s last president, Petro Poroshenko, the government nationalized Privatbank, alleging that Kolomoisky and one of his business partners had defrauded the bank of billions of dollars. Kolomoisky denied those charges but decamped from Kyiv to Israel, where he also holds citizenship. He retained political power in Ukraine through his business holdings, which include a major Ukrainian television station.
Kolomoisky is seen as an ally to Zelensky, who was an actor before his election, starring in a comedy show that aired on Kolomoisky’s network. Zelensky’s election was widely seen as a boon for Kolomoisky, particularly after the new president made Kolomoisky’s personal lawyer the head of his administration. Some in the United States were suspicious of Zelensky’s ties to the mogul, thinking the connection ran counter to Zelensky’s promises to pursue an anti-corruption and reformist agenda.
Since then, however, Zelensky has not supported returning control of Privatbank to the oligarch, and he fired that top aide. Still, Kolomoisky has been comfortable enough with Ukraine’s current leadership that he returned from a self-imposed exile in Tel Aviv and is again based in Kyiv, where he maintains connections to members of the presidential administration.
In spring 2019, when Trump’s personal attorney Rudolph W. Giuliani embarked on a mission to press Zelensky to assist Trump by opening politically charged investigations into former vice president Joe Biden and his son, Giuliani’s associates met with Kolomoisky to request that Giuliani get a sit-down with the rising Ukrainian politician.
Giuliani associates Lev Parnas and Igor Fruman met with Kolomoisky in April 2019 in Tel Aviv, and, by all accounts, the meeting did not go well.
Giuliani associates claimed to have sway with both foreign billionaires and Trump administration officials
After the meeting, the two Florida-based business executives accused Kolomoisky of physically threatening them and filed a lawsuit against him in Ukraine. Parnas and Fruman, who assisted Giuliani in his Ukraine project, were charged in the United States with campaign finance violations last year. They have denied any wrongdoing.
Giuliani has said he provided legal advice to Parnas and Fruman in their fight against Kolomoisky. He also tweeted repeatedly about his displeasure with Kolomoisky in May 2019 just as he was pressuring Zelensky to assist Trump with a Biden investigation. At one point, Giuliani complained that Zelensky was being advised by “Kolomoisky’s representatives and enemies of President Trump.”
Meanwhile, a lawyer for Kolomoisky has told The Post that during the Tel Aviv meeting, Parnas and Fruman claimed that they could get top U.S. officials, including Vice President Pence and then-Energy Secretary Rick Perry, to travel to Ukraine around the time of Zelensky’s May 2019 inauguration — if Kolomoisky paid them several hundred thousand dollars. Kolomoisky did not pay the money, instead throwing the two men out of his office, his lawyer has said.
The attorney, Bruce Marks, told The Post that Kolomoisky had predicted to friends at the time: “This is going to end up in a bad scandal.”
Ukraine arrests ex-PrivatBank official as U.S. prioritizes criminal probe of former owners
FEB 26, 2021 | REPUBLISHED BY LIT: MAY 17, 2022
The National Anticorruption Bureau of Ukraine (NABU) has arrested the former deputy chairman of a Ukrainian bank at the heart of an FBI criminal investigation as he attempted to fly abroad in the latest sign Kyiv is taking steps to tackle corruption and lawlessness.
Volodymyr Yatsenko was detained at Boryspil Airport in Kyiv on February 22 after investigators forced the pilot of the private jet he was traveling on to land, the bureau announced in a tweet.
Mr. Yatsenko, who was on his way to Vienna after reportedly being tipped off about his arrest, was charged with the embezzlement of funds at PrivatBank, once the nation’s largest lender.
More arrests of management could follow, the Kyiv Post reported.
The FBI is investigating the two owners of PrivatBank – Ihor Kolomoisky and Gennadiy Boholiubov – in connection with accusations that more than $5 billion was stolen from the lender through fraudulent loans and that the money was then laundered.
In a move that made international headlines, Ukraine was forced to nationalize PrivatBank in 2016 and pump more than $5 billion into the lender in order to stave off its bankruptcy.
The U.S. accuses Messrs. Kolomoisky and Boholiubov of using some of the laundered proceeds to buy assets in the U. S., ranging from metals companies to commercial properties, with the help of two American associates based in Miami.
The Justice Department last year filed three civil forfeiture lawsuits in a Florida court against a U.S. real estate holding controlled by the two tycoons and run by the associates.
However, a judge agreed last week with a Justice Department request to temporarily suspend the civil forfeiture proceedings amid concerns it could harm the criminal investigation against the Ukrainian businessmen and their two American partners.
“Allowing [the tycoons] to conduct discovery would expose the identities of witnesses who have provided and will provide information and testimony in both the civil forfeiture actions and the criminal investigation,” the Justice Department said in its February 19 filing.
“If that occurs, the confidential informants may cease providing information, and, to the extent they are not reachable through process in the United States, they may make themselves unavailable for future testimony. Potential sources of information who have not yet been interviewed by the government would likely be deterred from coming forward” the Justice Department said in its filing.
The tycoons deny the accusations and neither Ukraine nor the United States has filed criminal charges against them.
Mr. Kolomoisky is one of the most influential tycoons in Ukraine and the U.S. government’s investigation into his activities is being closely followed.
The billionaire owns key media, energy, and metals assets and is believed to have outsized influence over the administration of President Volodymyr Zelenskyy.
Mr. Kolomoisky’s TV stations backed Mr. Zelenskyy’s successful presidential bid.
The U.S., one of Ukraine’s biggest backers financially and militarily, has repeatedly expressed concern about oligarchic influence over the nation’s government and economy.
Washington has also complained about the lack of investigations into corrupt tycoons and officials and has tied some aid to improvements in judicial reform.
The arrest of Mr. Yatsenko, who was flying on a private plane owned by Mr. Kolomoisky, is the latest in a series of moves by Kyiv to tackle cases that resonate with the U.S.
Mr. Zelenskyy last week approved sanctions on Viktor Medvedchuk, a tycoon and lawmaker with close ties to Russian President Vladimir Putin. Mr. Medvedchuk was sanctioned by the U.S. in 2014 for undermining democracy in Ukraine.
On February 2, Mr. Zelenskyy sanctioned three television stations believed to be owned by Mr. Medvedchuk. In late January he announced an investigation into Ukrainian individuals accused of interfering in the 2020 U.S. presidential elections.
The moves come after President Joe Biden was inaugurated on January 20. Mr. Biden knows Ukraine well, having served as the point man to Kyiv while serving as vice president from 2009 to 2017.
Political analysts say Mr. Zelenskyy is seeking to win over the Biden administration after a difficult relationship with the Trump administration caused by the 2019 impeachment investigation.
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