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IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Case No.: SC05-1149


L.T. Case No.: 2004-10,132(6A)
Complainant

v.

MARK A. ADAMS,

Respondent. 1

RESPONSE TO THE FLORIDA BAR'S


PETITION FOR INTERTM SUSPENSION

COMES NOW, the Respondent, MARK A. ADAMS, pursuant to this

Court's Order dated March 9,2006, and files his Response to the Florida Bar's

Petition for Interim Suspension showing that the Florida Bar's Petition for Interim

Suspension should be denied because there is no legal basis for an interim

suspension, because the Florida Bar's Petition does not even meet the miniinurn

requirements for a petition for an emergency suspension, and because an interim

suspension would violate the procedures established for due process in disciplinary

proceedings before this Court.

INTERIM SUSPENSION

The Florida Bar's Petition does not cite any rule or case as a legal basis for

an interim suspension, but it does acknowledge that Rule 3-5.2 governs

proceedings for emergency suspension. This failure is not surprising as the Rules
Regulating the Florida Bar do not provide for an interim suspension. Please see

and take judicial notice of the results of the Westlaw search for the tenns "Rules

Regulating the Florida Bar"and '"nterim suspension" in Appendix A.

Furthermore, only two cases discuss the interim suspension of an attorney,

The Florida Bar v. Forrester, 916 So.2d 647 (Fla. 2005) and The Florida Bar v.

Prior, 330 So.2d 697 (Fla. 1976). Please see and take judicial notice of the results

of the Westlaw search for the terms "interim suspension" and "attorney" in

Appendix B.

Prior concerns the automatic suspension of an attorney convicted of

multiple felonies. On November 6, 1974, the Florida Bar filed a petition to

suspend Mr. Prior for conviction of multiple felonies, and Mr. Prior filed a timely

response to the Bar's petition. Prior at 697-698. As a result, this Court followed

the rule which applied at that time to attorneys who were convicted of a crime, and

it deferred the suspension until the parties could present their briefs to this Court.

Id. After complying with the procedure for due process provided in the

appropriate rule and considering the parties' briefs, this Court decided to suspend

Mr. Prior on March 3 1, 1976. Id. Prior is clearly distinguishable frsm the instant

case as the Respondent herein has not been charged with or convicted of any

felony.
0 1 1 August 8, 2002, the Florida Bar filed a petition for an order to show

cause why Ms. Forrester should not be held in contempt and to suspend Ms.

Forrester who it alleged had been practicing law while suspended. Forrester at

649. The Florida Bar's petition in Forrester is not available online, but a review of

the respondent's briefs indicate that an affidavit was attached to the Florida Bar's

petition as required by Rule 3-5.2 which governs proceedings for emergency

suspension. Furthermore, it appears that the Florida Bar inadvertently used the

term interim rather than emergency in its petition for Ms. Forrester's suspension as

the term is only found in this Court's opinion in Forrester in connection with the

title of the Bar's petition, and therefore, Forrester does not provide any legal basis

for an interim suspension or for the Florida Bar's Petition for Interim Suspension

of the Respondent.

EMERGENCY SUSPENSION

Rule 3-5.2 governs proceedings for emergency suspension and probation.

Rule 3-5.2(a) states, "On petition of The Florida Bar, authorized by its president,

president-elect, or executive director, supported by 1 or more affidavits

demonstrating facts personally known to the affiants that, if unrebutted, would

establish clearly and convincingly that an attorney appears to be causing great

public harm, the Supreme Court of Florida may issue an order imposing

emergency conditions of probation on said attorney or suspending said attorney on


an emergency basis." Rule 3-5.2(a) requires a proper authorization and at least one

affidavit to invoke this Court's jurisdiction to issue an emergency suspension

order.

In addition, Rule 3-5.2(d) requires the filing of a formal complaint within 60

days of an emergency order, and Rule 3-5.2 does not contain any provision for an

emergency suspension of an attorney based upon a referee's report.

Furthermore, the Florida Bar's Petition in this case also fails to comply with

Rule 3-5.2(a) because it is only authorized by Jodi A. Thompson, an assistant staff

counsel, and it is not supported by any affidavit.' Therefore, the Florida Bar's

Petition is not even sufficient to invoke this Court's jurisdiction to issue an

emergency suspension order.

GOVERNING LAW

Rule 3-7.7 states, "All reports of a referee and all judgments entered in

proceedings under these rules shall be subject to review by the Supreme Court of

Florida in the following manner:" Rule 3-7.7 does not provide for any interim or

emergency suspension of attorneys. The pertinent part of Rule 3-7.7(c)(6) states,

"After review, the Supreme Court of Florida shall enter an appropriate order or

judgment."

' In addition, the Florida Bar's Petition does not meet the requirements of Florida
Rule of Appellate Procedure 9.21O(a)(2) because it is not double-spaced and does
not contain a certificate of compliance.
Rule 3-7.7 provides the procedure for review of the referee's report in the

instant case, and the Respondent intends to file a timely petition for review

pursuant to Rule 3-7.7(c)(l). In the proceedings pursuant to Rule 3-7.7, the

Respondent intends to show that the referee's decision is erroneous, unlawful, and

unjustified, that the proceedings before the referee did not meet the minimum

requirements of due process, and that the Grievance Committee's finding of

probable cause which provides the jurisdictional basis for this disciplinary

proceeding was tainted by a prohibited conflict of interest on the part of the

Grievance Committee's Chair. Due to these fundamental errors, this Court is

likely to reverse the referee's decision if it does not decide to dismiss this action

altogether.

As there is no legal basis for the relief requested in the Florida Bar's Petition

for Interim Suspension, one must wonder why the Florida Bar is requesting that

this Court ignore the rules and procedures that it has established for due process in

disciplinary proceedings. It appears that the Florida Bar may have filed its Petition

to place an additional undue burden on the Respondent and thereby negatively

impact his preparations of his petition for review of the referee's report and his

brief in support of the same. Certainly, the relief requested in the Florida Bar's

Petition would have a negative impact on the Respondent, his clients, and his

ability to appeal the referee's report.


CONCLUSION

The Rules Regulating the Florida Bar do not provide for at1 interim

suspension and neither does case law. Rule 3-5.2 does not provide any legal basis

for an emergency suspension of an attorney based upon a referee's report, and the

Florida Bar's Petition in this case also fails to comply with Rule 3-5.2(a) because it

is only authorized by Jodi A. Thompson, an assistant staff counsel, and it is not

supported by any affidavit. Therefore, the Florida Bar's Petition is not even

sufficient to invoke this Court's jurisdiction to issue an emergency suspension

order.

Rule 3-7.7 provides the procedure for review of the referee's report in the

instant case, and the Respondent intends to file a timely petition for review

pursuant to Rule 3-7.7(c)(l). As this Court did in Prior,it should allow the

Respondent due process under the appropriate rule.

This Court should follow the procedure it has established for due process

under Rule 3-7.7 for reviewing the referee's report which does not provide for any

interim or emergency suspension of attorneys.

WHEREFORE,The Respondent respectfully requests that this Court enter

an order denying the Florida Bar's Petition for Interim Suspension and prohibit the

Florida Bar from undertaking M h e r efforts to interfere with the Respondent's


preparation of his petition for review of the referee's report and his brief in support

of the same.

Respectfully Submitted,

Mark A. Adams, Esquire

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been served by U.S. Mail to

trial counsel for the Florida Bar, Louis Kwall, Esquire at 133 North Fort Harrison

Avenue; Clearwater, Florida 33755 and to Staff Counsel for the Florida Bar at 65 1
1
E. Jefferson Street; Tallahassee, Florida 32399 on this i 1 '> day of March,

Mark A. Adams, Esquire


Fla. Bar No. 0 193178
P.O. Box 1078
Valrico, FL 33595
Telephone: 8 13-654- 1235
Facsimile: 8 13-654- 1390

CERTIFICATE OF COMPLfiNCIE

I HEREBY CERTIFY that this response complies with the requirements of

Florida Rule of Appellate Procedure 9.210(a)(2).

I\ilark A. Adams, Esquire


Fla. Bar No. 0 193178
IN THE SUPREME COURT OF FLORIDA

TFE FLORIDA BAR, Case No.: SC05-1149


L.T. Case No.: 2004- 10,132(6A)
Complainant

MARK A. ADAMS,

Respondent. 1

RESPONSE TO THE FLORIDA BAR'S


PETITION FOR INTERIM SUSPENSION

APPENDIX

TABLE OF CONTENTS
Document Tab

Results of Westlaw search for the terms


"Rules Regulating the Florida Bar" and "interim suspension"

Results of Westlaw search for the terms


"interim suspension" and "attorney"
Search- FL-ST-ANN - "RULES REGULATI Page 1 of 1

& ~ews1state
~overnment Florida J 1 A'ld R'-iwve I h s

Edit Search: "rules regulating the florida bar" &"interim suspension" Database: fl-st-ann i "tK" 1
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Florida Jurisprude~ce
1. Attorneys at Law, Types of Dlsc~pllne,Suspension, Generally

Florida J_uyispruden~e
2. Attorneys at Law, Suspended Members, Required Showing of Fitness to Resume Practice of Law,
Professional Ability

Florida Juwisprudence
3. Attorneys at Law, Disciplinary Proceedings, ~videnceand Witnesses, in General, Discipline by Another
Jurisdiction

4. Attorneys at Law, Disciplinary Proceedings, Effect of Disbarment or Suspension, On Practice in Other


States; Reciprocal Discipline

1 Am.Jur.2d
I 5. Attorneys at Law, Nonprofessional Misconduct, Conviction or Commission of Crime, Other Crimes and
Offenses

U.S.S_?lpreme_CpurtBrief
6. Ronald C. EUBANKS d/b/a Lawyer Complaint Service Re: Amended Petition to Amend Rules Regulating
the Florida Bar.
Appellate Petition, Motion and Filing
as stated in Rule 1-8.2 Unlicensed Practice of Law, of the Rules Regulating The Florida Bar, even
though the state has Fla. Stat. 454.23 t o protect t h e public.
1995
Supreme Court of the United States.
Clickfor Free-Summary

1 U.S. Sxrerne W u r t Brief


7. William A. CALVO, 111, Petitioner, v. THE FLORIDA BAR, Respondent.
Appellate Petition, Motion and Filing
The Florida Bar filed a motion t o limit issues a t trial t o that of discipline, claiming *14 t h a t a
violation of Commission Rule 2e was a n automatic violation o f undefined Florida disciplinary rules.
1994
- - . . . . . . . . . -. .
Page 2 of 2

QUERY - "INTERIM SUSPENSION" & DATABASE@) - FL-CS


ATTORNEY

1. H The Florida Bar v. Forrester, 916 So.2d 647,30 Fla. L. Weekly S623 (Fla., Sep 08,2005)(NO.
SCO1-1819, SCO2-1752)

...Geneva Carol Fnrrester, Respondent. Nos. SC01-1819, SC02-1752. Sept. 8,2005. Rehearing
Dcnied Nov. 22,2005. Background: In two attorney discipline cases, Florida Bar alleged attorney
violated Rules of Professional Conduct and recommended suspension from practice of law.
I-foldings: Upon ...

...of Professional Conduct and recommended suspension from practice of law. Holdings: Upon
consolidating cases, the Supreme Court held that: (1) attorney's knowingly false and disparaging and
humiliating statements in pleading submitted to court violated Rules of Professional Conduct; (2) as
matter ...

...to court violated Rules of Professional Conduct; (2) as matter of flust impression, standard of proof
in contempt proceedings against attorney based on alleged violation of disciplinary order was clear
and convincing evidence, not proof beyond reasonable doubt; (3) attorney knowingly ...

2. P The Florida Bar v. Prior, 330 So.2d 697 (Fla., Mar 31, 1976)(NO. 46442)

..West Headnotes 45 Attorney and Client 451 The Office of Attorney 45I(C) Discipline ...

... or judgment of guilt is entered by any court other than a court of the State of Florida, the convicted
attorney shall stand suspended as a member of The Florida Bar on the 1llh day following the filing
with the Clerk ...

... certified copy of such determination or judgment, accompanied by proof of service of notice of such
tiling upon the convicted attorney; provided, however, that if the convicted attorney shall prior to the
I lth day file a petition with the Supreme Court ...

O 2006 ThomsoniWest. No Claim to Orig. U.S. Govt. Works