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Florida Board of Bar Examiners v. Ferguson

Supreme Court of Florida

May 3, 2018

FLORIDA BOARD OF BAR EXAMINERS
v.
DONALD L. FERGUSON.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          Original Proceedings – Florida Board of Bar Examiners

          Elizabeth J. Walters, Chair, Michele A. Gavagni, Executive Director, and James T. Almon, General Counsel, Florida Board of Bar Examiners, Tallahassee, Florida, for Petitioner

          John A. Weiss of Rumberger, Kirk & Caldwell, Tallahassee, Florida, for Respondent

          PER CURIAM.

         This case is before the Court to review the Findings of Fact, Conclusions of Law, and Recommendation of the Florida Board of Bar Examiners (Board) on the application of Donald L. Ferguson for readmission to The Florida Bar. The application is Ferguson's second attempt at readmission following his disciplinary resignation from the Bar in 2000. The Board recommends that Ferguson be readmitted to the Bar. We have jurisdiction. See art. V, § 15, Fla. Const.; see also Fla. Bar Admiss. R. 3-23.7.[1] For the reasons that follow, we disapprove the Board's action on Ferguson's application and deny him admission to the Bar at this time.

         BACKGROUND

         Donald L. Ferguson was admitted to The Florida Bar in 1973. He worked as an assistant U.S. Attorney and then went into private practice as a criminal defense lawyer. In 1995, he was charged in federal court with conspiracy to obstruct justice and money laundering. Ferguson pled guilty to the two charges and was sentenced in 1999 to twenty-four months in prison and three years' supervised release. His conspiracy to obstruct justice conviction was based on him having notarized the affidavits of two individuals who had been arrested on drug trafficking charges, knowing that the affidavits included false statements and would or might be used in judicial proceedings for some fraudulent or deceitful purpose. The affidavits stated that a certain person in Colombia had nothing to do with the drug smuggling conspiracy for which the affiants had been arrested. The affidavits were intended to be used either to oppose extradition in Colombia or for some other purpose. One of the arrestees, Ferguson knew, was a high-ranking member of a Columbia-based drug-trafficking organization. Ferguson did not represent the persons whose affidavits he notarized. He notarized the affidavits because he was asked to do so by a lawyer associated with a Washington D.C. law firm that was sending him lucrative criminal defense cases.

         Ferguson's money laundering conviction stemmed from his receipt of $75,000 in cash from an individual associated with the same Washington, D.C. law firm that was sending him lucrative cases and in turn passing it on to the wife of a criminal defendant to use in obtaining the release of her husband on bond. He delivered the money for the same reason he notarized the false affidavits: because he was asked to do so by the people who were sending him lucrative legal business and he did not want to "ruffle [their] feathers."

         Shortly after Ferguson entered his guilty pleas, the Court suspended him from the practice of law, effective November 1, 1995. Following his sentencing in 1999, the Bar filed a complaint against Ferguson based on his criminal misconduct. Ferguson then filed a petition for disciplinary resignation, which the Bar did not oppose. The Court granted the petition and Ferguson was allowed to resign on July 13, 2000, effective, nunc pro tunc, November 2, 1995.

         In addition, at about the time he was to be sentenced on the 1995 charges, Ferguson was indicted on federal charges of conspiracy to commit money laundering and four counts of money laundering. The indictment charged Ferguson with engaging in monetary transactions with criminally derived proceeds and was based on his acceptance of about $565,000 in cash to defend a client on a charge of first-degree murder. Ferguson ultimately pled guilty in 2001 to one count of conspiring to receive and deposit narcotics proceeds, and was sentenced to five years' probation to run concurrently with his supervised release term.

         Ferguson also failed to timely pay his personal federal income taxes for the years 1996-2008 and 2010-2011, and had liens filed against him for the tax years 1996-1999 and 2000-2002. His failure to meet his federal income tax obligations never resulted in criminal charges, only civil penalties. He has since paid all past-due taxes and satisfied all liens.

         In February 2016, Ferguson applied for readmission to the Bar, executing an updated Bar application. The updated application is Ferguson's second attempt at obtaining readmission to the Bar; the Court denied his first application by order dated February 13, 2014. Because Ferguson's updated application and the Board's investigation revealed conduct adversely reflecting on his character and fitness for admission to the Bar, the Board held an investigative hearing, after which it filed three specifications against Ferguson. Ferguson filed an answer, and the Board conducted a formal hearing.

         Specification 1(A)(i)-(ii) alleged that Ferguson failed to comply with the rules of the U.S. Court of Appeals for the First Circuit governing attorney discipline by failing to disclose his criminal convictions and by not disclosing his disciplinary resignation.[2] Specification 2 alleged that Ferguson failed to disclose his admission to practice before the First Circuit on his first application for readmission to the Bar. Specification 3 alleged that Ferguson incorrectly stated on his updated application for readmission that his authority ...


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