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The Florida Bar v. Ratiner

Supreme Court of Florida

February 22, 2018

THE FLORIDA BAR, Complainant,

         Original Proceeding - The Florida Bar

          Joshua E. Doyle, Executive Director, Tallahassee, Florida, Adria E. Quintela, Staff Counsel, Sunrise, Florida, and Tonya L. Avery, Bar Counsel, The Florida Bar, Miami, Florida, for Complainant

          Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, Florida, for Respondent

          PER CURIAM.

         We have for review a referee's report recommending that Respondent, Robert Joseph Ratiner, be found guilty of professional misconduct in violation of the Rules Regulating The Florida Bar (Bar Rules), and that he be suspended from the practice of law for a period of three years.[1]

         Both The Florida Bar (Bar) and Ratiner have sought review of the referee's report. For the reasons discussed below, we approve the referee's findings of fact and recommendations as to guilt. We also approve the aggravating and mitigating factors found by the referee. However, we disapprove the referee's recommendation that Ratiner be suspended for a second three-year period, to run consecutive to an earlier suspension of three years. Based upon Ratiner's cumulative and escalating misconduct, the Court concludes that disbarment is the appropriate sanction.


         Ratiner was admitted to practice law in 1990. In each of the three disciplinary cases brought against Ratiner, two prior and the instant case, the misconduct arose in the course of his representation of plaintiffs against E.I. DuPont De Nemours & Co., Inc. (DuPont). The first disciplinary case resulted in a sixty-day suspension and a public reprimand, to be followed by a two-year period of probation, Fla. Bar v. Ratiner, 46 So.3d 35 (Fla. 2010), while the second case resulted in a three-year suspension. Fla. Bar v. Ratiner, 177 So.3d 1274, 2015 WL 5156338, at *1 (Fla. 2015). Because the referee in this case found that the prior cases constituted aggravating factors, and because we conclude that they demonstrate the progression of Ratiner's disparaging misconduct towards other members of the legal profession, we discuss the earlier disciplinary cases below in the context of our determination that disbarment is warranted in this case.

         The Florida Bar filed a complaint on March 22, 2013, alleging that on June 29 and December 14, 2011, and January 30, 2012, Ratiner violated the Bar Rules in his representation of the plaintiff in the matter of Sidran v. E.I. DuPont De Nemours & Co., Inc., case number 92-18377, in the Eleventh Judicial Circuit (Miami-Dade County, Florida). After the complaint was referred to a referee, we stayed the proceedings upon the motion of the referee while the Court considered the second disciplinary case brought against Ratiner, case number SC12-393. Following the disposition in that case, see Fla. Bar v. Ratiner, 177 So.3d 1274, 2015 WL 5156338 (Fla. 2015), we lifted the stay and the referee conducted a final hearing pertaining to whether Ratiner had violated the Bar Rules and the issue of sanctions. The referee thereafter submitted his report for the Court's review, in which he made the following pertinent findings and recommendations.[2]

         "Lie, Lie, Lie"

         One of the allegations of misconduct raised by the Bar was that Ratiner, during a post-trial hearing in the Sidran matter, was overheard saying "lie, lie, lie" in quick succession while opposing counsel conducted the direct examination of Ratiner's law partner. At the hearing before the referee, the judge presiding in the Sidran case, Judge Amy Steele Donner, testified that she had heard Ratiner utter the words "lie, lie, lie, " while at the time Ratiner denied that he had said those words. Ratiner testified before the referee that he had been talking to his associate in a low voice but that he had no recollection of saying "lie, lie, lie." In his report, the referee found Judge Donner's testimony at the final hearing that Ratiner had in fact spoken the words "lie, lie, lie" "very credible." As a result, the referee found Ratiner guilty of violating Bar Rules 4-3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct).

         Kicking Counsel's Table

         In its complaint, the Bar also alleged that Ratiner, in the post-hearing proceedings in the Sidran case, repeatedly kicked the leg of counsel's table where he was seated. The lead opposing counsel in the Sidran litigation, Andrew Brenner, testified before the referee that Ratiner was kicking counsel's table "in a manner that was disruptive of the proceedings." The referee had Mr. Brenner demonstrate how Ratiner had been kicking the table, and found it to be "very loud." Judge Donner testified at the final hearing that she was aware that Ratiner had kicked the table, and she called a sidebar after he did it a second time. As a result of the kicking incident, she ended the post-trial hearing. Based upon the testimony of Judge Donner and Mr. Brenner, the referee concluded "that such behavior in fact would be disruptive to any judicial proceedings, " and found that Ratiner intended to disrupt the proceedings and was therefore guilty of violating Bar Rules 4-3.5(c) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

         Evidence of Additional Misconduct

         Although the referee did not make recommendations on the issue of guilt with regard to additional alleged misconduct charged by the Bar, he did summarize testimony from various witnesses pertaining to the additional alleged misconduct. We conclude that such evidence, as supported in the record, is relevant to our determination of attorney discipline. For that reason, we describe that additional evidence as follows.

         Judge Donner testified that limits on closing arguments were agreed to by the lawyers, and when Ratiner exceeded his time, she gave him a few additional minutes but he stated that he would take whatever time he needed. Judge Donner also testified that she saw Ratiner " 'wrinkling and throwing' documents and that after 4-5 times of this behavior she reprimanded Respondent." On cross-examination, Judge Donner stated that she saw Ratiner throwing documents on counsel's table, that he denied it, and that she told him that he was calling her a liar because she did see him do it. Judge Donner described Ratiner's behavior at trial as "awful, that he was not respectful to the court or obeyed orders, and that she was 'appalled.' " Moreover, Judge Donner testified that Ratiner's behavior "had been totally disruptive, that he was a 'bully' and that she called the Bar about Respondent's behavior." Finally, the referee found that there was clear and convincing evidence "that during the entire trial Respondent had been rude, overly aggressive, unprofessional and at times appeared to try to intimidate the witness."

         Recommended Sanction

         In determining the appropriate sanction, the referee found four aggravating factors under Florida Standard for Imposing Lawyer Sanctions 9.22, including the following: (a) (prior disciplinary offenses); (c) (a pattern of misconduct); (g) (refusal to acknowledge wrongful nature of conduct); and (i) (substantial experience in the practice of law). The referee found the following mitigating factors under Florida Standard for Imposing Lawyer Sanctions 9.32: (b) (absence of a dishonest or selfish motive); (g) (character or reputation); and (h) (physical or mental disability or impairment).[3]

         In addition to the above-cited aggravating and mitigating factors, the referee considered the following cases prior to recommending discipline: Fla. Bar v. Kelner, 670 So.2d 62 (Fla. 1996); Fla. Bar v. Wasserman, 675 So.2d 103 (Fla. 1996); Fla. Bar v. Morgan, 938 So.2d 496 (Fla. 2006); Fla. Bar v. Abramson, 3 So.3d 964 (Fla. 2009); Fla. Bar v. Norkin, 132 So.3d 77 (Fla. 2013); Fla. Bar v. Ratiner, 46 So.3d 35 (Fla. 2010); Fla. Bar v. Chosid, 500 So.2d 150 (Fla. 1987); Fla. Bar v. Vining, 761 So.2d 1044 (Fla. 2000); Fla. Bar v. Walkden, 950 So.2d 407 (Fla. 2007); Fla. Bar v. Rotstein, 835 So.2d 241 (Fla. 2002); Fla. Bar v. Norkin, 183 So.3d 1018 (Fla. 2015); and Fla. Bar v. Simring, 612 So.2d 561 (Fla. 1993). As discussed in our analysis below, the referee did not discuss any of the individual cases cited or why the cases supported his recommended sanction.

         Based on his findings of fact, recommendations as to guilt, the aggravating factors and mitigating factors found, and cited case law, the referee recommended that Ratiner be suspended for a period of three years, ...

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