IN THE SUPREME COURT OF FLORIDA. (Before a Referee) Supreme Court Case Nos. SC09-1011, SC09-1012 Florida Bar File No. 2006-71,063 qn) THE FLORIDA BAR, Complainant, vs. HENRY ADORNO AND CHARLES MAYS, Respondents. FINAL ORDER ON THE FLORIDA BAR’S MOTION FOR SUMMARY JUDGMENT AND RESPONDENT CHARLES MAYS MOTION FOR SUMMARY JUDGMENT AND RESPONDENT HENRY ADORNO’S MOTION FOR SUMMARY JUDGMENT This cause came on for hearing on January 6, 2010 upon cross motions for summary judgment filed on behalf of The Florida Bar v. Charles Mays and The Florida Bar v. Henry Adomo. Motions for Summary Judgment are appropriate in bar disciplinary cases, The Florida Bar v. Mark Gold, 937 So. 2d 652.‘At the onset, ALL parties, the Bar, Mays and Adorno concede there are NO issues of a material fact and as such each are entitled to judgment in their favor. Inasmuch as this case is set for trial, and each party concedes there is no necessity for a trial, the Referee finds there are no material facts in dispute. The disciplinary proceedings against the Respondents emanate from an underlying case seeking class certification for alleged improper emergency medical assessment fees imposed by the City of Miami on residents of the City of Miami. A more detailed description of the events giving rise to this disciplinary case are recited in Carl L. Masztal er al v The City of Miami by the 3rd District Court of Appeal. The Court accepts Respondent Adomo’s statement of undisputed facts submitted on November 23, 2009. The Florida Bar also submitted undisputed exhibits and a consolidated statement of undisputed facts which the Referee also accepts. As each party concedes there are only questions of law, the Referee shall address the questions of law as to the Respondent's separately.(CASE # SC09-1011 THE FLORIDA BAR V. ©) ES MAYS Charles Mays was a city attorney representing the City of Miami in the underlying action. He is alleged to be subject to bar discipline for violating various provisions of Rules 4-3.3 and 4-8.4. The Florida Bar must establish the charges against Respondent by clear and convincing evidence. Florida jury instructions define clear and convincing evidence as: “that precise explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation about the matter.” In essence the Bar alleges Mays is subject to discipline for saying little or nothing when a settlement was announced by Adomo. Although charged with several violations of the disciplinary rules, they all merge into Rule 4-33. Mays, the Bar contends was less than candid with the tribunal and failed to “disclose material facts to a tribunal when disclosure is necessary...” “Applying the evidentiary standard of clear and convincing evidence to the undisputed facts of this case, the Referee cannot say without hesitation that Mays’ silence constitutes a violation of the disciplinary rules. On the record before this Referce, and upon the undisputed facts agreed to by all the parties in this case, the Motion for Summary Judgment 3filed by the Florida Bar is DENIED and Respondent Charles Mays Motion for Summary Judgment as to all counts of alleged disciplinary misconduct is GRANTED and judgment is entered in his favor. (CASE # $C09-1012) THE FLORIDA BAR V. HENRY ADORNO This cause came on for hearing on January 6, 2010 upon cross motions for summary judgment filed on behalf of The Florida Bar v. Charles Mays and The Florida Bar v. Henry Adomo. At the onset, ALL parties, the Bar, Mays and Adomo concede there are NO issues of a material fact and as such each are entitled to judgment in their favor. ‘tnasmuch as this case is set for trial, and each party concedes there is no necessity for a trial, the Referee finds there are no material facts in dispute, The disciplinary proceeding against the Respondents emanate from an underlying case seeking class certification for alleged improper emergency medical assessment fees imposed by the City of Miami on residents of the City of Miami. A more detailed description of the events giving rise to this disciplinary case are recited in Carl L. Masztal et al v The City of Miami by the 3rd District Court of AppealThe Court accepts Respondent Adomo’s statement of undisputed facts submitted on November 23, 2009. The Florida Bar also submitted an appendix of exhibits and a consolidated statement of undisputed facts which the Referee also accepts. Henry Adomo is an attomey with the firm of Adomo and Yoss. He was lead counsel in the underlying case against the City of Miami which alleged improper emergency medical assessment fees had been imposed by the City of Miami on residents of the City of Miami. He is alleged to be subject to bar discipline for violating various provisions of Rules 4-1.5, 43.3, 4-8.4, and 4.1.7. ‘The Referee finds Adorno’s role in this matter to be substantially different from that of Respondent Mays. Adomo announced the settlement in Judge Lopez’s court on May 26, 2004. Adomo negotiated the settlement with representatives from the City of Miami. The Florida Bar alleges Adomo misled Judge Lopez during the May 26, 2004 hearing. They allege Adomo’s statements were less than candid, not forthright and incomplete. As a result, they claim Judge Lopez was unaware that the announced settlement did not contemplate a resolution of claims by an undetermined/putative class.Judge Lopez in a written order found both Respondents were Jess than “forthright” about the type of settlement reached by the parties. The transcript of the May 2004 hearing is only three pages. The Referee has struggled to decipher the meaning of the few words on those pages. Could and should more have been said? Yes. Could what was said be subject to misinterpretation? Perhaps. Was what was said misleading? Equivocal. ‘Once again, the Referee emphasizes the standard of evidentiary burden placed on The Florida Bar --- clear and convincing evidence is needed to prove Adomo misled Judge Lopez during the May 26, 2004 hearing. Can the Referee say with “precise explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation about the matter” that Respondent Adorno misled Judge Lopez and was less than forthright in the hearing? The answer is No. The Referee therefore grants Partial Final Summary judgment in favor of Respondent Adomo on all disciplinary allegations that Adomo misled the court or tribunal. ‘The Bar’s Amended Complaint alleges two other areas of disciplinary misconduct against Respondent Adorno which, more succinctly framed are:1) Did Respondent Adorno owe a duty to or breach a duty owed to the undetermined/putative class members when he settled with the City of Miami only on bebalf of the individual plaintiffs? 2) When Respondent Adomo settled with the seven individual plaintiffs for $7,000,000 did he receive an excessive fee? Counsel for Mr, Adomo argues Respondent owed no duty toa yet undetermined/putative class of potential plaintifis. They arene until the class js certified his duties are only to the named individual plaintiffs. Counsel’s argument conflict with Adomo’s sworn testimony. At mediation Adorno demanded $35 million dollars to settle the case. The Bar asked him at his deposition, “{at that point} you were representing the interests of the entire class? His answer was, “No question about that.” Despite having negotiated a potential settlement for the entire undetermined’putative class, when the negotiations broke down, he entered into a separate settlement with the City of Miami for $7 million dollars -- but only for the seven individual plaintiffs in the Jawsuit. By so doing, in the Referee’s opinion Respondent Adomo breached a fiduciary duty owed to the undetermined/putative class members. In Shelton v. Pargo, 582 F. 2d 1298, the United States Court of ‘Appeal for the 4" Cirouit faced issues not t00 dissimilar to those before theReferee. The Court in Pargo held, “... by asserting a representative role on behalf of the alleged class, these appellees voluntarily accepted a fiduciary obligation towards the members of the putative class and they thus have undertaken to represent, They may not abandon the fiduciary role they assumed at will or by agreement with the appellant, if prejudice to the members of the class they claimed to represent would result or if they have improperly used the class action procedure for their personal aggrandizement. This has been declared in repeated decisions.” Adomo undertook to represent the undetermined/putative class at mediation. He negotiated on their behalf and attended numerous hearings when class certification was determined by Judge Lopez to be a “no brainer”. His trial memorandum {Tab M} (Florida Bar Appendix) and the pre mediation letter to the mediator {Tab L} (Florida Bar Appendix) extensively advocated for the undetermined/putative class, and it would be illogical to argue that class certification was uncertain. The Referee would be remiss if it did not comment on. the conflicts in the law in this area. The affidavits filed in support of Adomo's Motion for Summary Judgment and other supporting cases do create a contlict as 10 what fiduciary duty is owed to an undetermined or putative class by lead counsel. The Florida Supreme Court will ultimately resolve any conflict.However, itis the totality of the circumstances one must examine in determining Respondent Adomo's conduct. Settling with seven individual plaintiffs to the detriment of the undetermined/putative class -~ under the facts of this case was prejudicial, illogical, and unexplainable. ‘Asa result of Respondent's prejudice to the class, it follows Respondent took an excessive and indefensible attorney fee. The holding in Pargo is most appropriate, "if prejudice to the members of the class they claimed to represent would result or if they have improperly used the class action procedure for their personal aggrandizement." The Referee therefore finds not only was the class prejudiced but no rational person could explain how seven individual plaintiffs secking a de minimis refund of an emergency medical assessment fee could end up dividing $5,000,000 in settlement proceeds and their attorneys $2,000,000. The proposed $5,000,000.00 disbursement to the settling individual plaintiffs was: 1. PlaintiffEvaNagymihaly $823,685.34 2. Plaintiff Prosper $757,189.34 3. Plaintiff Merker $760,168.34 4. Plaintiff Willits $753,530.34 5. Plaintiff Clark $752,713.326. Plaintiff Clancy $752,713.32 7. Plaintiff TUFF $400,000.00 The Florida Bar's Motion for Summary Judgment is DENDED in part and GRANTED in part. Respondent Henry Adomo's Motion for Summary Judgment is GRANTED in part and DENIED in part. The Referee finds Respondent did not violate section 4-3.3 of the disciplinary code by misleading a court or tribunal. The Referee finds Respondent violated disciplinary rules of conduct in sections 4-1.5, 4-8.4 and 4.1.7 by breaching his fiduciary duty to the undetermined/putative class for pecuniary gain and by accepting a resulting excessive attomey fee. This matter shall proceed to the penalty phase. Four days have been reserved for trial. The penalty phase will not require four days. As such, the Referce orders the parties on Monday January 11, 2009 at a mutually agreeable place and time enter into good faith negotiations in an attempt to agree to suggested discipline. A trial on discipline, if necessary, shall commence in courtroom 960 of the Broward County Courthouse at 10:00 am on Tuesday January 12, 2009. A detailed Referee's report will be filed with the Florida Supreme Court thereafter.Dated this 8th day of January 2010. Jack Tuter, Circuit Court Judge 17th Judicial Circuit and Referee Broward County Courthouse 201 SE 6th Street, Room 1010B Fort Lauderdale, FL 33301 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this order has been mailed to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399, Kasey L. Prato, Bar Counsel, 444 Brickell ‘Ave., Suite 100, Miami FL 33131, Andrew S. Berman, counsel for Henry ‘Adomo, 17071 W. Dixie Highway, North Miami Beach, FL 33160, Bruce Rogow, counsel for Henry Adomo, 500 E. Broward Blvd., Suite 1930, Fort Lauderdale, FL 33394 and George F. Knox, counsel for Charles Mays 150 SE 2nd Ave, Suite 902, Miami FL 33160 on this 8th day of January, 2010. Jack Tuter, Circuit Court Judge 17th Judicial Circuit and Referee Broward County Courthouse 201 SE 6th Street, Room 1010B Fort Lauderdale, FL 33301 * This order was sent :il 1 counsel for the bar, and counsel for respondents on Friday January 8.2010. i