1

No. SC01-251

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant/Appellee,

v.

LEONARD MARK DACHS,

Petitioner/Respondent.

On Petition For Review of the Report of the RefereeFor the Eleventh Judicial Circuit

PETITIONER’S REPLY BRIEF

STEPHEN BRONIS LEONARD M. DACHS, pro seZUCKERMAN SPAEDER LLP 5799 Southwest 91 Street201 South Biscayne Blvd. Miami, FL 33156Miami Center, Suite 900 Telephone: (305) 665-6288

2

Miami, FL 33131Telephone: (305) 579-0110

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS........................................................... i

TABLE OF AUTHORITIES..................................................... ii

STATEMENT OF THE CASE AND OF THE FACTS......... 1

ARGUMENT.............................................................................. 6

THE REFEREE’S RECOMMENDATION OF DISBARMENTWAS EXCESSIVE IN LIGHT OF THE NATURE OFPETITIONER’S CONVICTION AND THE EXTENSIVEMITIGATING CIRCUMSTANCES IN THIS CASE

CERTIFICATE OF SERVICE................................................ 15

CERTIFICATE OF COMPLIANCE...................................... 15

ii

TABLE OF AUTHORITIES

Page

CASES

Caruso v. State645 So.2d 389, 394 (Fla. 1994)..................................... 4

Florida Bar v. Baker................................................................ 13-14

27 Fla. L. Weekly S111 (Fla.2/21/02)

Florida Bar v. Carbonaro........................................................ 11464 So.2d 549 (Fla. 1985)

Florida Bar v. Fussell.............................................................. 9,11

179 So.2d 852, 855 (Fla. 1965)

Florida Bar v. Hirsch............................................................. 14342 So.2d 970, 971 (Fla. 1977)

Florida Bar v. Kassier............................................................. 12-13

711 So.2d 515, 517 (Fla. 1998)

Florida Bar v. Maynard........................................................... 8672 So.2d 530 (Fla. 1996)

Florida Bar v. Rightmeyer...................................................... 7616 So.2d 953, 955 (Fla. 1993)

iii

Florida Bar v. Silverman........................................................ 8468 So.2d 229 (Fla. 1985)

Florida Bar v. Summers......................................................... 13728 So.2d 739, 742. (Fla. 1999)

iv

Florida Bar v. Wilson.............................................................. 8425 So.2d 2 (Fla. 1983)

Florida Bar. v. Wolis................................................................ 6-8

783 So.2d 1057 (Fla. 2001)

North Carolina v. Alford.......................................................... 10400 U.S. 25, 91 S.Ct. 160 (1970)

United States v. Davis............................................................... 5516 F.2d 574 (7th Cir. 1975.)

OTHER AUTHORITIES

18 U.S.C. 1503.......................................................................... 1

28 U.S.C. 1257.......................................................................... 1

F. R. Crim. P. 11(f)................................................................... 5

Rule 4-8.4(d), Rules Regulating the Florida Bar..................... 9

Standard 6.21, Florida Standards for Imposing Lawyer Sanctions 9

1

Copies of the Information and related exhibits relied upon by the parties were attachedto the Bar’s Motion for Partial Summary Judgment and Mr. Dachs’ Response thereto.As in our Initial Brief, these pleadings and the attached documents will be referencedherein as “Motion” and “Response”, followed where necessary by the appropriateexhibit reference. Citations to the transcript of the Final Hearing before the HonorableCatherine Pooler, the Referee in this matter, will be referenced by the letter “T”followed by the appropriate page number. Exhibits entered into evidence during thehearing will be referred to by the party offering the exhibit and exhibit number.

2

28 U.S.C. 1257 is entitled “State courts; certiorari” and establishes the jurisdiction ofthe U.S. Supreme Court to review by writ of certiorari final judgments or decreesrendered by the highest court of a State.

v

STATEMENT OF THE CASE AND OF THE FACTS

At the very outset of its brief, the Bar erroneously claims that Mr. Dachs

“pled guilty to one count of a 47 count indictment for violating 28 U.S.C. 1257.”

Answer Brief at 1. In fact, Mr. Dachs pleaded guilty to a single-count Information

charging him with obstruction of justice under 18 U.S.C. 1503. Motion, Ex.”A.”

1 2

The Bar claims that “Respondent has omitted most of the salient facts,

particularly those which directly pertain to the Argument presented in his brief.”

Answer Brief at 2. The Bar then quotes (or misquotes as the case may be) portions

3

See, e.g. Respondent’s Initial Brief at 3-4: “Mr. Dachs agreed to plead guilty to anInformation charging him with obstructing justice by knowingly violating the protectiveorder issued in the Falcon case by Judge Moreno. Motion, Ex. “C.” The Informationalleged that Mr. Dachs received approximately $1.8 million in the four and one halfyear period between October 15, 1991 and March 12, 1996. Motion, Ex. “A”.

vi

of the transcript of the plea colloquy. These alleged “omissions” are addressed

below:

a) The trial court’s description of the offense pertaining to Mr. Dachs’

knowing and willful violation of the protective order in the Falcon case, followed

by AUSA Sullivan’s description of the Information: Id., at 2-4. Simply stated,

there has been no omission by Respondent. The nature of the charge is fully

addressed in our Initial Brief at pp. 1, 3-4, 23-25.3

b) AUSA Sullivan’s statement that Mr. Dachs “saw huge quantities of

drugs at [defendants’] homes and received payment for his services at their

homes: Answer Brief at 4. The Bar fails to acknowledge that Mr. Dachs’ counsel

disputed the accuracy of AUSA Sullivan’s entire proffer, with the exception of

admitting that Mr. Dachs accepted legal fees in violation of the protective order

entered by Judge Moreno. Motion, Ex. “D” at 33-35. Further, as the Bar well

knows, this particular allegation, made by government witness and confessed

perjurer Melvyn Kessler, was specifically addressed and denied by Respondent’s

4 Like Kessler, Ms. Bonachea is also an admitted perjurer.

vii

lawyer during the plea colloquy. Id., at 34

c) AUSA Sullivan’s statement summarizing Marilyn Bonachea’s testimony:

Answer Brief at 4-5. Again, as the Bar knows, the pertinent portions of Ms.

Bonachea’s allegations4 were also denied by Respondent’s lawyer during the plea

colloquy. Motion, Ex. “D” at 34.

d) AUSA Sullivan’s description of the checks received by Mr. Dachs, and

the use of such checks by Magluta and Falcon to pay all the defense lawyers:

Answer Brief at 5. Despite the Bar’s claim, this information was not omitted from

Mr. Dachs’ brief, but instead has been relied upon him throughout these

proceedings to demonstrate that he “was paid via check in the same way that Roy

Black, Albert Krieger, Jeffrey Weiner and other counsel were paid...” Initial Brief

at 10, 29, 34.

e) The Bar’s claim that “[i]n 1991, the Respondent had actually

functioned as a distributor of the defendants’ funds to pay the fees due to the

Ackerman, Senterfitt law firm.”: Answer Brief at 5. Not even AUSA Sullivan,

who sought to place as negative a spin as possible in his proffer, made this

accusation. Sullivan stated that Mr. Dachs took responsibility for ensuring payment

5

Referee Pooler read Mr. Dachs’ deposition in connection with the summary judgmentproceedings, and the deposition was admitted into evidence at the final hearing. T. 33-34.

viii

of Ackerman, Senterfitt’s fees for representing Falcon and Magluta’s parents in

civil forfeiture litigation. Motion, Ex. “D” at 30-33. Again, the accuracy of AUSA

Sullivan’s entire proffer was disputed by Mr. Dachs’ counsel, with the exception

of admitting that Mr. Dachs accepted legal fees in violation of the protective order

entered by Judge Moreno. Id., at 33-35.

This allegation by the Bar is particularly unwarranted where Bar counsel

extensively examined Mr. Dachs about this matter at his deposition.5 Mr. Dachs

specifically denied these allegations (as well as others made by Mr. Sullivan during

the plea colloquy.) Mr. Dachs testified that he told the Ackerman, Senterfitt lawyers

to stop sending him bills because he was not responsible for the payment of their

fees. Dachs deposition of June 14, 2001 at 88-92.

The Bar’s reliance on AUSA Sullivan’s proffer is entirely inappropriate.

First, as noted above, the Bar has misrepresented many of the allegations set forth

in the proffer. Second, AUSA Sullivan’s proffer was not proof or evidence, but

merely a recitation of what he believed his witnesses would say. The proffer was

erroneous in material respects, and the accuracy of that proffer was challenged by

ix

counsel for Mr. Dachs, who stated that Mr. Dachs was only “prepared to admit to

conduct which would satisfy the requirement of violating the statute [charged] in

the Information.” Motion, Ex. “D” at 34. The allegations contained in the proffer

were not all necessary to the conviction nor admitted by Mr. Dachs as part of his

guilty plea. Since these accusations were not central to the crime or plea, the plea

was accepted and the factual dispute was never resolved.

Here and throughout its brief, the Bar demonstrates a lack of comprehension

of what a plea colloquy is designed to accomplish. F. R. Crim. P. 11(f) requires

a court to satisfy itself that there “is a factual basis for the plea.” The rule “does not

specify that any particular type of inquiry be made.” Fed. R. Crim. P. 11(f),

Advisory Committee's Notes. A defendant’s acknowledgment of the truth of all the

facts essential to guilt is not necessary to satisfy the factual basis requirement of

Rule 11, and a court may accept a guilty plea where the defendant claims the

prosecution’s witnesses are lying. United States v. Davis, 516 F.2d 574 (7th Cir.

1975.) The record before the referee indicates that most of the allegations relied

upon by the Bar in its Answer Brief were denied by Respondent through his

counsel during the plea colloquy and by Respondent under oath at his deposition.

Finally, the Bar should be precluded from relying upon the unsworn,

unproven, and erroneous allegations contained in AUSA Sullivan’s proffer where

x

the Bar did not rely upon these allegations in the proceedings below. The

Complaint of the Florida Bar sought the imposition of disciplinary sanctions against

Mr. Dachs based solely upon his guilty plea to and conviction of obstruction of

justice. Similarly, its Motion for Partial Summary Judgment focused solely on the

charge to which Mr. Dachs pleaded guilty, and the fact of that conviction. At the

final hearing, the Bar raised two new issues: Mr. Dachs’ supposedly false statement

in the affidavit he submitted in support of his opposition to the partial summary

judgment motion, and his admission to the use of cocaine 20 years ago. T. 16, 33.

The Bar did not call Kessler, Bonachea or any lawyers from Ackerman, Senterfitt

at the final hearing, and never argued that Mr. Dachs’ punishment should be based

upon anything contained in AUSA Sullivan’s proffer. Not surprisingly, Referee

Pooler’s decision fails to refer to the proffer or any of the hearsay allegations

contained therein. Thus, the matters contained in that proffer are both legally and

factually irrelevant to this Court’s decision.

ARGUMENT

THE REFEREE’S RECOMMENDATION OF DISBARMENT WASEXCESSIVE IN LIGHT OF THE NATURE OF PETITIONER’S

CONVICTION AND THE EXTENSIVE MITIGATING CIRCUMSTANCESIN THIS CASE

The Bar principally relies upon Florida Bar. v. Wolis, 783 So.2d 1057 (Fla.

xi

2001), calling it “similar in virtually every respect.” Answer Brief at 10. Wolis,

however, is easily distinguishable.

Wolis was in-house counsel for a company under investigation by the

Securities and Exchange Commission (SEC). He pleaded guilty to an indictment

that alleged that he filed false reports with the SEC. “Especially pertinent” were the

referee’s findings that Wolis was responsible for administrative operations of the

company, and had not only prepared the narrative portions of the company’s

quarterly and annual reports, but also signed the annual reports filed with the SEC.

The referee found that these reports overstated the company’s revenues and

reported profits when the company was actually operating at substantial losses,

and were designed to make the company look profitable and active in order to

boost the price of its stock, of which Wolis owned 35,000 shares. The referee

further found that Wolis had lied under oath during the SEC’s investigation.

In upholding the referees’ recommendation of disbarment, this Court relied

upon Florida Bar v. Rightmeyer, 616 So.2d 953, 955 (Fla. 1993) (stating that there

is no ethical violation more damaging to the legal profession and process than lying

under oath, and that a lawyer who knowingly and deliberately seeks to corrupt the

legal process can logically expect to be excluded from it).

Mr. Dachs accepted legal fees in violation of a protective order. He did not

xii

submit any false statements, did not lie under oath and did not seek to defraud

anyone. (By acting to inflate the price of his 35,000 share of stock, Wolis sought

to defraud the potential purchasers of that stock.) His witnesses unanimously

testified that the acceptance of the bona fide legal fee by Mr. Dachs did not

interfere with the due administration of justice. His case bears no rational

relationship to Wolis’ conduct.

Florida Bar v. Silverman, 468 So.2d 229 (Fla. 1985) is the only other case

relied upon by the Bar. The one-page opinion reveals nothing about the nature of

Silverman’s obstruction of justice conviction. This case too is easily

distinguishable, where Silverman agreed to disbarment.

Importantly, Mr. Dachs cited a plethora of decisions by this Court imposing

lesser sanctions than disbarment for lawyers convicted of crimes equally or more

egregious than his. Initial Brief at 43-45. The Bar has not attempted to dispute the

relevancy or authoritativeness of any of these decisions. The Bar fails to even

discuss Florida Bar v. Maynard, 672 So.2d 530 (Fla. 1996) and Florida Bar v.

Wilson, 425 So.2d 2 (Fla. 1983), the only cases cited by the referee. The Bar

implicitly concedes the inapplicability of those cases.

Every witness at the disciplinary hearing testified that the acceptance of the

fee by Mr. Dachs did not interfere with the due administration of justice. It is

xiii

uncontested that Mr. Dachs did nothing to undermine the legitimacy of the judicial

process of arriving at an appropriate verdict in the case involving Magluta and

Falcon. He did not suborn perjury, falsify evidence, bribe jurors or witnesses or

do anything else to adversely affect the integrity of the truth finding process in the

case. Accordingly, in his Initial Brief, Mr. Dachs argued that his receipt of legal fees

in violation of the protective order, albeit wrongful and illegal, did not “obstruct or

interfere” with the due administration of justice as those terms are defined by the

applicable case law. Initial Brief at 25-26.

The Bar asserts that since Mr. Dachs is not appealing the entry of partial

summary judgment, he is precluded making this argument to this Court. Answer

Brief at 13-14 The Bar misconstrues the argument, which is directed, not at Rule

4-8.4(d), as the Bar suggests, but rather the applicable Florida Standards for

Imposing Lawyer Sanctions, and particularly Standard 6.21. Standard 6.21

provides that “disbarment is appropriate when a lawyer knowingly violates a court

order and causes serious injury or potentially serious injury to a party or causes

serious or potentially serious interference with a legal proceeding.” (emphasis

supplied) Mr. Dachs is certainly entitled to distinguish his conduct from that of

lawyers such as Wolis, and he is entitled to argue that the title of the federal statute

he violated is not the last word on the subject. See, Florida Bar v. Fussell, 179

6

Referee Pooler did, however, find that Mr. Dachs had cooperated fully in thedisciplinary proceedings. Report at 5

xiv

So.2d 852, 855 (Fla. 1965). (Fussell had the due process right to explain "the

circumstances surrounding the offense and also in mitigation of the penalty.")

Mr. Dachs submitted an affidavit and testified at the final hearing (and before

a federal grand jury) that he engaged in willful blindness in choosing to ignore

certain facts that caused or should have caused him to question whether his legal

fees fell within the scope of the protective order. Referee Pooler found the affidavit

and testimony “materially inconsistent” with Mr. Dachs’ testimony during his guilty

plea solely because Mr. Dachs admitted his guilt and did not enter an “Alford”

plea. Report at 4.6 The Bar spends but three paragraphs of its brief attempting to

support this finding, relying mostly upon the Sullivan proffer. Answer Brief at 15-

16, 17-18. For the reasons previously expressed, the Sullivan proffer is irrelevant.

As to the purported “inconsistency” between Mr. Dachs’ affidavit and

testimony in this case and his plea colloquy, the Bar has failed to cite any case law

supporting the proposition that a defendant’s failure to enter an “Alford” plea

establishes his direct knowledge of a material fact and not his willful blindness

thereto, where willful blindness is the functional and legal equivalent of direct

knowledge, and where Judge Seitz did not ask Mr. Dachs to provide any details

xv

regarding his state of mind. A plea under North Carolina v. Alford, 400 U.S. 25,

91 S.Ct. 160 (1970), is one where the defendant asserts his innocence, but pleads

guilty or nolo contendere because the plea is in his best interests. Mr. Dachs has

never said he was innocent of the charge to which he pleaded guilty; he has simply

sought to explain his state of mind, as is his right under Florida Bar v. Fussell,

supra. Mr. Dachs testified truthfully throughout the proceedings below. His

testimony is internally consistent and corroborated by the testimony of Albert

Krieger regarding their conversations about the fees, as well as the fee checks to

Dachs, Krieger, Roy Black, and Jeffrey Weiner introduced into evidence in this

case.

The Bar has chosen not to challenge many of the contentions made by Mr.

Dachs regarding aggravating and mitigating circumstances, which, after all, are the

heart of the issue in this case where Mr. Dachs contests the recommendation of

disbarment. For example, the Bar does not contest that Mr. Dachs has a lengthy

history of providing pro bono legal services, or that such history is a mitigating

factor, but instead faults Mr. Dachs for failing to provide authority that assistance

to his fellow inmates is pro bono work. Mr. Dachs, relying upon Florida Bar v.

Carbonaro, 464 So.2d 549 (Fla. 1985), has argued that his personal hardship

should have been considered as a mitigating factor. The Bar did not respond to

xvi

this argument, nor did the Bar respond to Mr. Dachs’ argument that the referee

failed to consider the imposition of other sanctions and penalties on Mr. Dachs.

The Bar’s silence on this and other matters of mitigation speaks volumes.

In shotgun fashion, the Bar attempts to dispute Mr. Dachs’ remaining

arguments by simply denying each in a sentence or two. Answer Brief at 16-17.

There is little for Mr. Dachs to respond to. The unanimous and uncontradicted

testimony at the final hearing contradicts the Bar’s claim that Mr. Dachs failed to

prove that he could have earned more had he turned down the Falcon case. Every

witness testified that Mr. Dachs was underpaid for five years of work, and that he

did not act from a selfish motive. The record likewise amply demonstrates that Mr.

Dachs did make a timely good faith effort to rectify the consequences of his action

where both the government and Judge Seitz acknowledged that Mr. Dachs had fully

accepted responsibility for his conduct. The Bar’s statement that “inexperience

with protective orders is not recognized in any case as a mitigating factor,” proves

our point exactly. Such orders are rare even today, and were virtually unheard of

in 1991.

Finally, the Bar’s statement that Mr. Dachs “asserts that it was the Bar’s

position that a felony conviction should automatically result in disbarment,” is

simply wrong, where that assertion appears nowhere in the Initial Brief. The

xvii

statement by Bar counsel at the hearing, that “[i]t would be a whole other story if

we were here today on the underlying conduct and there was no guilty plea…”

T. 207 is instead a concession that the Bar would not be seeking disbarment but

for the fact of the conviction. Bar counsel’s attempt at damage control was and is

incomprehensible.

In Florida Bar v. Kassier, 711 So.2d 515, 517 (Fla. 1998) this Court stated

that, “the extreme sanction of disbarment is to be imposed only in those rare cases

where rehabilitation is highly improbable.” Mr. Dachs amply demonstrated his

interim rehabilitation by voluntarily teaching and providing assistance to his fellow

inmates, paying his fine and Bar dues, keeping up with his continuing legal

education requirements and (as so found by the referee) cooperating with the Bar’s

investigation. Mr. Dachs cited a number of cases supporting his contention that he

is in the process of rehabilitation, yet the Bar’s response is merely to state, without

argument, that teaching fellow inmates is not evidence of rehabilitation.

Finally, this Court’s recent decision in Florida Bar v. Baker, 27 Fla. L.

Weekly S111 (Fla. January 21, 2002) also supports Mr. Dachs’ position. Baker and

his wife had marital problems, and Baker forged her name to legal documents

relating to the sale of the marital home. He solicited his secretary to engage in

criminal conduct by notarizing the forged signatures, and cheated his wife out of

xviii

her share of the proceeds of the sale of the home. Baker falsely testified before the

referee that his wife knew of and consented to the sale of the home.

After upholding the referee’s findings of fact and recommendations of guilt,

this Court rejected the referee’s recommendation of disbarment. “Disbarment is an

extreme sanction that is reserved for the most egregious misconduct,” citing

Florida Bar v. Summers, 728 So.2d 739, 742. (Fla. 1999.) Instead this Court

suspended Baker for ninety-one days. “This is severe discipline because Baker will

be required to demonstrate proof of rehabilitation in order to achieve

reinstatement.” (emphasis supplied)

This Court has stated that “disbarment occupies the same rung of the ladder

in these proceedings as the death penalty in criminal proceedings.” Florida Bar v.

Hirsch, 342 So.2d 970, 971 (Fla. 1977). Mr. Dachs’ conduct, considered in light

of his rehabilitation and the other substantial mitigating factors, does not warrant

the death penalty of sanctions imposed on lawyers. Mr. Dachs asks this Court to

impose the “severe discipline” of a three-year suspension. This is not a new stance

he is asserting in light of the referee’s recommendation, but rather, a position he has

taken throughout the course of the proceedings below. T. 242

Respectfully submitted,

xix

ZUCKERMAN SPAEDER LLPMiami Center201 South Biscayne BoulevardMiami Center, Suite 900Miami, Florida 33131Tel: (305) 579-0110Fax: (305) 579-9749

_________________________________STEPHEN J. BRONIS, ESQUIREFlorida Bar No. 145970Counsel for L. Mark Dachs

__________________________ L. Mark Dachs, pro se

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing ReplyBrief was delivered via United States mail this 19th day of February, 2002, to thefollowing individuals:

Randi Klayman LazarusBar CounselThe Florida BarSuite M-100, Rivergate Plaza444 Brickell AvenueMiami, Florida 33131

Staff CounselThe Florida Bar650 Apalachee ParkwayTallahassee, FL 32399-2300

________________________________STEPHEN J. BRONIS, ESQUIRE

xx

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the forgoing Reply Brief was prepared in 14-point Times New Roman font. The computer disk filed with this brief has beenscanned and is virus-free.

_________________________STEPHEN J. BRONIS, ESQ.