DAVID MARK COUILLARD, THE FLORIDA BAR, INITIAL BRIEF OF DAVID MARK

IN THE SUPREME COURT OF FLORIDA

DAVID MARK COUILLARD, Appellant, v. THE FLORIDA BAR, Complainant, ____________________________/ ________________________________________________________________

INITIAL BRIEF OF DAVID MARK COUILLARD

IN SUPPORT OF PETITION FOR REVIEW (ORIGINAL)

CASE NO. SC10-871 TFB NO. 2009-00,175 (20B)

________________________________________________________________ ________________________________________________________________

DAVID M. COUILLARD, P.A. DAVID M. COUILLARD, ESQ. ATTORNEY FOR APPELLANT 1713 54th

Street SW Naples, Florida 34116 Florida Bar No: 0469180

_____________________________ David M. Couillard, Esquire Florida Bar No.: 0469180

______________________________________________________________________________________ ATTORNEY COUILLARD’S BRIEF PAGE II

TABLE OF CONTENTS TABLE OF CITATIONS ................................................................................... iiiPRELIMINARY STATEMENT ......................................................................... 1STATEMENT OF THE CASE AND FACTS .................................................... 2SUMMARY OF ARGURMENT .................................................................... 20ARGUMENT POINT ONE ............................................................................. 21

THE REFEREE ABUSED HER DISCRETION AND ERRED AS A MATTER OF LAW .... 21A.Standard of Review .................................................................................... 21B.Argument on the Merits .............................................................................. 21

ARGUMENT POINT TWO ............................................................................ 28THE REFEREE ABUSED HER DISCRETION AND ERRED BY FAILING TO GIVE PROPER WEIGHT TO CERTAIN WITNESS TESTIMONY

.. 28Error! Bookmark not

defined.A.Standard of Review .................................................................................... 28B.Argument on the Merits .............................................................................. 30

ARGUMENT POINT THREE ........................................................................ 35THE REFEREE ABUSED HER DISCRETION BY PREMATURELY HOLDING A SANCTIONS HEARING AND RECOMMENDING DISCIPLINE DISPROPORTIONATE TO THE PUTATIVE OFFENSE ................................................................................... 35 A.Standard of Review .................................................................................... 35 B.Argument on the Merits .............................................................................. 36

CONCLUSION ................................................................................................. 39 CERTIFICATE OF SERVICE ...................................................................... 40 CERTIFICATE OF COMPLIANCE ............................................................ 40

______________________________________________________________________________________ ATTORNEY COUILLARD’S BRIEF PAGE III

TABLE OF CITATIONS

Article V, Section 15, of the Constitution of the State of Florida………..1,21,28,29 Statutes: FLA.R.APP.P. RULE 9.210(a)(2) .................................................................................. 4 Rule 4-8.4(d) .................................................................................... 1,17,20,21,22,30 Cases: B.J. v. Dept. of Children and Family Servs., 983 So.2d 11 (Fla. App., 2008)...24,31 Florida Bar v. D’Ambrosio, 25 So.3d 1209, 1215 (Fla., 2009)……………….21,22 Florida Bar v. Elster, 770 So.2d 1184, 1185 (Fla. 2000)………………………22,30

Florida Bar v. Fredericks, 731 So.2d 1249, 1251 (Fla. 1999)…………………25,32 Florida Bar v. Lecznar, 690 So.2d 1284, 1288 (Fla. 1997)……………………….36 Florida Bar v. O'Connor, 945 So.2d 1113, 1120 (Fla. 2006)……………………..35 Florida Bar v. Thomas, 582 So2d 1177, 1178 (Fla. 1991)………………………..29 In re Oca, Inc., 551 F.3d 359 (5th. Cir., 2008)………………………………...27,34 M.E. v. Florida Department of Children and Families, 1 So.3d 268 (Fla. App., 2009)…………………………………………………………………………...24,31 Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983)………21,23,26,27,29,33

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=p6AOc31HUkd%2b5MxgpQfeBW5xS1AKdAB6dss1YPpFwenT2qyZxZSkX1HKZ7njMqFaFFmrjDf%2fSNCqvSrwgNolHqo0G1q90lVVfK%2f6m5ym6pjPCfTeVOYw2DJAay7Dv8ao&ECF=Bar+v.+Elster%2c++770+So.2d+1184%2c+1185+(Fla.2000)�

______________________________________________________________________________________ ATTORNEY COUILLARD’S BRIEF PAGE 1

PRELIMINARY STATEMENT Appellant, DAVID M. COUILLARD (hereinafter “Couillard”) was

accused of violating Rule 4-8.4(d) (conduct prejudicial to the administration of

justice) of the Rules Regulating The Florida Bar, complaint number SC10-871.

The matter was sent to the Twelfth Judicial Circuit Court and on January 3,

2011, Referee Honorable Donna Padar Berlin abused her discretion by ignoring

expert and lay witness testimony and other evidence presented by finding that

Couillard breached Rule 4-8.4(d).

In the case at bar, Couillard proved with clear and convincing expert

and lay witness testimony and evidence, the accused violation could not have

happened. Accordingly, Couillard could not have and did not violate Rule 4-

8.4(d). Thus the Referee’s decision is contrary to the evidence that clearly

failed to meet the required quantum standard of “clear and convincing” and, as

a matter of both law and equity must be vacated.

JURISDICTIONAL STATEMENT

The Supreme Court of Florida has jurisdiction pursuant to Article V, Section 15, of the Constitution of the State of Florida.


STATEMENT OF THE CASE AND FACTS A. Course of Proceedings

Couillard at all material times hereto is a member of the Florida Bar in

good standing. Since January 1990, Couillard is also a United States Army Reservist, decorated with several awards in addition to all 21+ years served are good. Couillard first met Complainant’s witness, Martin Selden (hereinafter “Selden”), in the summer of 2001 and was retained shortly thereafter. Through-out this representation, Selden was a difficult client.

In February 2003, Couillard was mobilized to active duty service in the Army, so he recommended Selden consult Attorney Samantha Stevins for possible representation. At this meeting he claimed she treated him with the worst unprofessional conduct ever experienced, apologized, then she proceeded to slander Couillard’s lawyer skills. (Complainant’s exhibits 9 and 10). Couillard then referred him to Attorney Anthony Lawhon. Selden was retained but continued his difficult behavior. Specifically, he contested every legal bill. This representation was eventually terminated by Lawhon.

Couillard returned from service and was rehired by Selden in 2005. He continued and escalated his problematic ways. Selden began to refuse to pay legal bills and refused to sign contracts previously agreed to. His behavior declined as he became increasing abusive, insulting and unacceptable by


repeated derogatory name-calling and threats directed at Couillard. Selden also attempted to extort unethical services while continuing his threats and yelling. His behavior became so outrageous that Couillard called the Florida Bar for help. Couillard was advised to fire Selden in writing, he did (Complainant’s exhibit 8). Couillard motioned three Court’s to withdraw from Selden’s active cases because he refused to stipulate. At all hearings, Selden contested the withdrawal that was granted. He also asked the Court to order Couillard to continue representation, but was denied each time. Couillard was mobilized to active duty service a second time February 2008. Couillard was serving in Kuwait when first provided a copy of Selden’s Florida Bar Inquiry/Complaint Form. On the face of his complaint, Selden stated I understand I am over the 50 pages. Couillard was not provided any attachments but did file a timely response and the initial investigation was conducted. Couillard produced several documents for this investigation including Complainant’s exhibits 8, 9, 10, and 11. These Exhibits were provided as evidence directly contradicting statements made by Selden in his complaint and led to the initial dismissal due to insufficient evidence. The complaint was reopened because of Selden’s request and his production of paper copies of two emails with attachments alleging Couillard continued to provide legal advice and assisted by “ghost writing” for Selden after


disqualification (Complainant’s exhibits 13 and 14). It is uncontested these emails do not contain full and complete header information to include the sender or recipient’s ip (internet protocol) address or mail server which are required to prove sent delivery and receipt.

These emails were first provided to Couillard October 2009. Couillard spoke to the investigator and denied ever receiving and/or viewing the emails and attachments. The grievance committee filed a Notice of Finding Probable Cause for Further Disciplinary Proceedings.

Couillard was advised by Complainant’s Bar Counsel, Troy M. Lovell, to hire and consult a computer expert prior to filing of a formal complaint. Couillard hired Michael Anderson, Certified Computer Network Engineer to check his computer for the emails, the attachments and anything showing receipt thereof. December 2009, Couillard sent Mr. Anderson’s letter to Lovell, which concluded:

There is no record this email was sent or received in my professional opinion. . . There are two basic reasons I can’t prove they were sent or received. . . I could not see the header of the email, to track how or where it came from, I need to see the email in full to be able to trace where and how it left Mr. Seldens email address. (Couillard’s exhibit D)

Lovell responded in a letter dated April 20, 2009:

In December, you wrote to me with the opinion of the computer


expert that was inconclusive regarding whether the emails in question were received by you. Accordingly, the matter will be proceeding to the Supreme Court of Florida soon.

On May 11, 2010, Mr. Lovell filed the formal complaint, Couillard

answered and discovery was conducted. Couillard requested discovery to include:

Specifically, from KC Stout, I want to see the full and complete header showing all details proving the emails were sent. I also need to see the downloaded attachments, and anything showing return receipt requested and return read requested.

A Four (4) page computer forensic report was produced but does not contain full and complete header information to include the sender or recipient’s ip (internet protocol) addresses or mail servers that is required to show proof of sent, delivery and receipt (Complainant’s exhibit 17). Couillard also requested Complainant to produce all attachments to the initial complaint but only received insufficient excuses from Mr. Lovell (page 13-14 of the final hearing transcript). Couillard offered to let Complainant examine his computer, but was declined. Selden evaded the Sheriff’s attempts to serve a subpoena for his deposition duces tecum. On October 1, 2010, Selden voluntarily appeared for his rescheduled deposition. He produced the 50 pages but attempted to collect copy fees from Couillard. Selden was argumentative, evasive, hostile,


avoided answering several questions, asserted attorney client privilege and lied several times. The documents he did produce did not contain the emails (Complainant’s exhibits 13 and 14) and did not support any of the declarations he made under penalty of perjury in his initial complaint. Selden was asked about his email statement, Just sue her abnormal fat ass and be done with her (Complainant’s exhibit 10) contradiction to his statement in his complaint about the same person, In my opinion Mr. Couillard harassed Attorney Samantha Stevins with a frivolous lawsuit (Couillard’s exhibit 2) and testified, “opinions change.” On November 22, 2010, Couillard deposed Complainant’s computer forensic expert, Kevin Charles Stout. Mr. Stout was asked: Q. Does either of the headers show that the e-mail ever, in fact, left his computer? A. “Let’s see. No it does not.” (page 17 of the deposition transcript and page 127 of the Final Hearing Transcript) Q. I’m asking you what – on what you were able to rover (should state recover), how does this ever show that this email ever left Mr. Selden’s computer? Does it prove it ever left? A. No, the sent header is not listed in the file headers. Q. Okay. And were you able to recover a sent header? A. No, Sir. Couillard then referred to both recovered email file headers and asked:


Q. And these do not prove that either of these e-mails ever left his computer; is that correct? A. Yeah, it does not show the sent headers. (page 23-24 of the deposition transcript) Couillard continued with: Q. All right. The next question, is there any proof here that I ever received these e-mails? A. Oh, no, no, sir. No, it doesn’t show that. Q. Okay. Then just to recap everything, based upon the headers on the sent e-mail, we cannot prove that these e-mails were, in fact, ever sent; is that correct? A. No, it does not. Q. And then without full and complete received header we cannot prove that these e-mails were ever received by anybody; is that correct? A. And individual, no. (page 26 of the deposition transcript) Couillard did not receive the Stout deposition transcript until December 13, 2010. The next day, Couillard motioned the Referee for an immediate hearing, involuntary dismissal, contempt, to strike and for attorney’s fees because of Complainant’s violations of the rules of discovery and evidence and inability to provide any clear and convincing evidence. Couillard also moved to have Selden held in contempt and stricken as a witness for failing to provide the subpoenaed information. The Referee denied all relief and ordered the final hearing to proceed. (pages 1-19 of the Final Hearing Transcript).


On January 3, 2011, a final hearing was held where Complainant’s burden was to prove its case by the clear and convincing evidence standard that Couillard violated Rule 4-8.4(d) (conduct prejudicial to the administration of justice) of the Rules Regulating the Florida Bar. To do this, Complainant was required to prove that after disqualification, Selden sent and delivered the emails and attachments. Complainant had to also prove delivery, receipt, downloading, viewing of the emails and the attached documents by Couillard. Complainant also had to prove that Couillard continued to provide legal advice and counsel to Selden including assisting with the drafting and editing of documents to be filed with the court, as alleged in its complaint. Couillard was called as the first witness. Couillard denied ever receiving/viewing the emails and attachments, exhibits 13 and 14. Couillard also denied ever discussing these exhibits as well. These statements were never disproved, nor was his credibility ever impeached. Couillard testified that after the trial Judge dismissed him from the Zaino v. Security Trust Mortgage Corp. Collier County Case No. 05-1270-SC, he gave Selden the entire case file in addition to a thumb drive containing case documents. Selden then represented himself and used that format to draft his own pleadings.


Couillard admitted to filing Complainant’s exhibit 7, after disqualification because of instructions he was given in the welcoming packet received from the 20th Judicial Circuit for new attorney’s (pages 42- 44). The packet expressly directed, if you make a mistake, admit it and correct it. The trial judge, Vincent Murphy, filed a Bar Complaint against Couillard but was dismissed because he was acting as directed and told the investigator these facts. Complainant’s exhibit 7 specifically states:

COMES NOW the Defendant, SECURITY TRUST MORTGAGE CORP.’s, (hereinafter Defendant) former attorney in this cause of action, and hereby files this Amended Response only to correct the factual errors contained in the previously filed Response dated April 7, 2006, to Plaintiff’ ROBERT J. ZAINO JR.’s (hereinafter Plaintiff), Motion to Strike as follows: Couillard also admitted to receiving Complainant’s exhibits 9, 10

and sending 11. These emails do not contain attachments and 9 and 10 were sent from a different email address than Complainant’s Exhibits 13 and 14.

Complainant’s next witness was Selden. Selden testified that

Couillard continued to provide counsel after disqualification by assisting with trial preparation and with drafting and editing of documents to be filed with the court (page 56 of the Final Hearing Transcript). Selden also testified that he communicated with Couillard specifically about exhibits 13, 14 and 15 by email and telephone (page 57-62). Selden identified the document attached to exhibit 14 as the final draft he submitted to the court


(page 59 and 62).

On cross examination, Selden admitted he stood by the allegations set forth in his initial complaint (page 70). Selden was asked about his allegations contained in his initial complaint concerning the trial judge who issued an order on his case but contradicted his previous statement (page 73). Selden testified statements made by an opposing party/witness (Robert Zaino) on his case, labeled a liar by Selden were used to verify his own allegations (page 74). Selden was asked about his email statement, Just sue her abnormal fat ass and be done with her (Complainant’s exhibit 10) contradiction to his statement in his complaint about the same person, In my opinion Mr. Couillard harassed Attorney Samantha Stevins with a frivolous lawsuit (Couillard’s exhibit 2) and evaded answering (pages 85-88).

Selden was asked if he stood by the statement he made about Attorney Mark Slack, he replied correct (page 80). Selden was asked about his specific statements about Attorney Anthony Lawhon in his complaint but refused to answer and asserted attorney/client privilege (pages 95-96). Selden was asked about statements he made concerning Virginia Egan, that she never worked for Couillard, and testified “that’s what she told me.” (page 99)

Couillard asked Selden to look at the Judge and state word for


word the conversation that took place in which drafting and editing advice were provided by Couillard. Selden replied he could not remember three years ago what the conversation was. Selden was then asked to provide detail and replied “Wording of the complaint.” (pages 99-101). Selden was then asked if the finalized version (exhibit 15) was the attachment to exhibit 14 and he testified “Correct.” Selden was then asked to look at exhibit 15 and testified “Looks like we did a little more work.” (page 102)

Complainant asked Selden concerning exhibit 14, do you recall anything specifically and he testified, No, I really don’t (page 105). Couillard asked Selden if he brought any phone records to verify that the conversations actually took place and Selden testified local calls are not on my phone bill. Selden was asked was there ever any recording of the conversations and testified no. Selden was asked you don’t remember the details of those conversations? and testified other than help and recommendations, no. Selden was then asked, you don’t have any specific recollection of what was said exactly? and testified Exactly no. Again it was three years ago (all on page 106). The Complainant’s next and final witness was computer expert, Kevin C. Stout. Stout testified that he was hired by Complainant to recover exhibits 13 and 14. Stout testified he recovered incomplete headers that


lacked specific tracking information. Stout testified the missing information, the ip addresses and mail servers are required information to show proof of sent and receipt (page 120). Stout testified that the received date information he recovered shows the email was sent (page 123).

On cross examination, Stout testified the emails reached a mail server but does not show but not a particular one. Did the e- mail headers show it ever was left or received by an IP address and he testified by an IP, no, sir (page 126). Couillard read Stout’s own deposition statement, Does either of the headers show that the e-mail ever, in fact, left his computer, and he responded “Let’s see. No it does not.” (page 127). Stout was then asked, And the question was, is that a true and correct Statement, and he responded To answer I have to explain. Can I explain -- Feel free. Okay. In a full header, in a full email header, there should be -- one of the line items in the header should say “sent.” There should be a “sent” field with the date and time. In the email header here, it does not show a “sent.” That’s part of the incomplete header that we were referring to.” (pages 127-128). Stout testified that it shows that an email server saw it , but it doesn’t show that someone received it (page134). Stout was asked if he was able to determine whether Mr. Selden sent the email entitled Relief and testified Yes. Stout was then asked do you


know when it was sent? and testified No. I know when it was created and last accessed. Stout was then asked, can you determine whether this was sent from Mr. Selden’s computer? and testified no, sir (page 136). Referring to Couillard, Stout was asked, do you know whether he specifically received them and testified No, sir (page 137).

Complainant then rested its case and Couillard moved the Referee for a directed verdict against Complainant citing Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983) but was again denied (pages 144-149). Couillard called computer forensic expert witness Michael Anderson. Anderson is also pastor (page 151). Anderson testified in detail that he performed a search on Couillard’s Computer but did not find any proof his computer ever received Complainant’s exhibit’s 13 and 14. Anderson also testified that because of the missing header information that these are true emails that were ever sent or received (page 157-163). Anderson verified his conclusions contained in his letter, Couillard’s exhibit D (page 163). Anderson testified how easy it is to manipulate an email to make it appear to have been sent Couillard’s exhibit E (pages 164-166).

Anderson testified that the Complainant’s evidence (exhibits 13,

14, 16 and 17) do not show proof of the emails leaving from or sent by Selden’s computer. Anderson testified that this evidence does not verify and


it would be impossible to tell that Couillard ever viewed the emails. Anderson testified about his examination of Couillard’s computer, there is no evidence of Couillard receiving the emails or the attachments (page 167-168). Anderson presented detailed evidence of what a full and complete email header looks like (pages 168-172). Anderson was asked that because the Complainant’s evidence is missing mail server and ip address information, it’s impossible to show the emails were ever sent or received and testified, Correct. (pages 172-174). Anderson testified that Selden’s email server, embarq, was one of the most highly spammed, blocked email providers (page 174). Anderson testified that Couillard’s email address is protected by AKO/DKO filters Couillard’s exhibit F (page 176). Anderson testified restating his conclusions that Complainant’s exhibits 13, 14, 16 and 17, does not prove they were ever sent or received (pages 177-178 and 184-185). Couillard called all three witnesses named in Selden’s initial complaint starting with Attorney Mark Slack. Mr. Slack was asked to verify Selden’s statements about their discussion. Mr. Slack was read Selden’s exact statements. Mr. Slack did not corroborate Selden’s statements made under the penalty of perjury. Mr. Slack specifically denied Selden’s statements. Mr. Slack did testify about Selden, stating, I didn’t care too


much for that individual (pages 190-193). Couillard called witness Attorney Anthony Lawhon next. Mr. Lawhon was asked to verify Selden’s initial bar complaint statements about Lawhon’s representation of Selden cases. Mr. Lawhon was read Selden’s exact statements and specifically refuted Selden’s statements made under the penalty of perjury. Mr. Lawhon testified that Selden was probably one of the top two or three worst clients I ever had. Mr. Lawhon testified that Selden also used harsh profanity and accused Mr. Lawhon of lying on several occasions. (pages 198-202). Couillard called witness Virginia Egan next. Ms. Egan was asked to verify Selden’s initial bar complaint statements about her working for Couillard. Ms. Egan was read Selden’s exact statements and specifically negated Selden’s statements made under the penalty of perjury. Ms. Egan specifically testified about Selden that, Personally, I didn’t respect him at all (pages 206-208). Couillard called himself last and specifically denied and negated all of Selden’s and Complainant’s allegations without ever being challenged or impeached (pages 211-214). During closing, the Referee specifically asked is there no way or was it not possible to subpoena the army email from the army itself?


Complainant responded it never occurred to me to try to subpoena the army, because of the federal government -- and later, No, it was not done (pages 235-236). The Referee reserved ruling. On January 13, 2011, the Referee held a teleconference and ruled in favor of Complainant. Couillard consulted computer expert Kevin Stout where Stout admitted to Couillard that he is willing to execute an affidavit and testify stating: (1) he is not an outlook express expert; (2) he really does not know what causes the receipt date of the header to be filled in, he was guessing; and (3) that with the exception of exhibits 13 and 14, all the other emails Stout found on Selden’s computer had full and complete headers, as plead in Couillard’s motion for rehearing. As a result, on January 13, 2011, Couillard also filed his motion for immediate hearing for rehearing and reconsideration. On January 21, 2011, the Referee denied Couillard’s motion and then heard the sanctions hearing and reserved ruling. Couillard called character witnesses refuting the allegations of Complainant. On February 18, 2011, Couillard received the Report of the Referee dated February 13, 2011. The Referee, The Honorable Donna Padar Berlin filed, executed her report on February 13, 2011 and recommended everything the Complainant requested . Couillard timely filed his petition asking this Court to review the


report and recommendations of the Referee and this brief timely followed. B. Referee’s Findings of Fact and Recommendations as to Guilt

Appellant Couillard specifically challenges the following:

With regards to Exhibits 13 and 14, Selden testified on cross examination he could not remember the “word for word” telephone conversions they had, though Selden recalled that the conversation was about the wording of several drafts of the post trial motion. (page 9 of Report of the Referee) On cross examination by Coulliard, Stout testified that in his opinion Exhibits 13 and 14 were sent from Selden’s computer according to the receipt date and time. Selden (should read Stout) further testified that based on his review of Exhibits 13 and 14, he was unable to determine whether the emails were ever received by anyone, including Coulliard.” (page 10 of Report of the Referee) I recommend that the Couillard be found guilty of violating Rule 4-8.4 (d) of the Rules of Professional Conduct. . . The clear and convincing evidence finds that Coulliard performed legal work on the Zaino case after a court order was entered disqualifying him from the case. I specifically find that Coulliard assisted Selden prepare for the trial of the Zaino case as well as assisted Selden draft a post-trial motion that Selden submitted to the trial court for consideration. I find the testimony of Selden as set forth above credible and accept his representations that he and Couillard exchanged emails (Exhibits 13 and 14) and spoke on the telephone about Exhibit 15. Couillard’s attempt to impeach Selden’s testimony on collateral matters was unsuccessful. Lawhon and Slack had negative experiences with Slack (sic. should read Selden) but none of those experiences led me to find Selden’s testimony completely unreliable and discredit it in its entirety. The Referee gave no weight to witnesses Lawhon, Slack or Egan. (pages 14-15 of Report of the Referee)


While there is disagreement between computer experts Stout and Anderson, I do not find that lack of forensic evidence that Coulliard received the emails, precludes me from finding he violated Rule 4-8.4(d). Coulliard’s Army and Hotmail accounts were accessible through web-based servers. There is no evidence to show that Couillard was unable to receive Selden’s emails (Exhibits 13 and 14) via the web. The Referee confined Anderson’s testimony. . . Finally, there is Selden’s personal account of the email and telephonic exchange that took place between Coulliard and himself. (pages 15-16 of Report of the Referee) I recommend that Couillard be found guilty of misconduct justifying disciplinary measures and that he be disciplined by: Discipline For the reasons set forth in The Florida Bar’s Memorandum of Law for Sanctions, the Court recommends that Coulliard be suspended from the practice of law for thirty (30) days and that he also be required to complete Ethics School and the Professionalism Workshop within six (6) months of the final order in this proceeding. (page 16 of Report of Referee)

The referee also taxed costs of $6,738.60 against Couillard. (pages 23- 24 of Report of Referee)

The Referee ignored the Couillard’s character witness’s testimony from the January 21, 2011, Sanctions Hearing that specifically refutes the Complainant’s allegations of lack of respect for judicial authority. The Report fails to mention any of it at all. (pages 10, 11, 17-19 of the Sanctions Hearing Transcript). Specifically both witnesses negated Complainant’s accusations of Couillard’s conduct demonstrated contempt and disrespect for the authority of the trial court. Couillard stated he was appealing because of


being convicted of an incident that never happened. (page 21) The Report did acknowledge. The Court notes, however, that Coulliard adamantly denied committing the alleged violation. (page 21 of Report of Referee)


SUMMARY OF ARGURMENT

Couillard complied with all Rules Regulating the Florida Bar. The

Referee erred in finding a violation of Rule 4-8.4(d) by: abusing her discretion

by failing to make a finding consistent with the evidence presented by failing to

apply the proper quantum standard of evidence, i.e. “clear and convincing”;

abusing her discretion by giving undue weight to Martin Selden’s testimony

when it was refuted by three of Selden’s own witnesses, including two attorneys

and Selden himself; and prematurely held a sanctions hearing making

recommendations of discipline without all required conditions precedent and

recommending discipline disproportionate to the putative offense.


ARGUMENT POINT ONE

THE REFEREE ABUSED HER DISCRETION AND ERRED AS A MATTER OF LAW

A. Standard of Review

The Supreme Court of Florida has jurisdiction for review pursuant to Article V, Section 15, of the Constitution of the State of Florida. Florida Evidence Code §90.301-§90.304 provides for presumption affecting burden of proof. Florida Evidence Code §90.401 and §90.402 provides for relevant evidence. Florida Evidence Code §90.701-§90.705 provides for lay and expert testimony. In addition to witness testimony, admissible corroborating forensic evidence must be presented to show that emails were sent and delivered to Couillard, that Couillard received those emails and that Couillard downloaded the attached documents and discussed those attachments in order to support a finding that Rule 4-8.4(d) was violated. See Slomowitz v. Walker , 429 So.2d 797 (Fla. 4th

substitute its judgment for that of the referee. See Florida Bar v. D’Ambrosio,

DCA 1983).

The quatum of proof required for the above testimony and substantive corroborating evidence is “clear and convincing” (Slomowitz v. Walker). This court has repeatedly defined that standard that with regard to facts, this Court’s review is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and


25 So.3d 1209, 1215 (Fla., 2009).

The Referee abused her discretion by failing to make a finding consistent with the evidence presented by disregarding both expert witnesses testimony, exhibits and lack of forensic evidence of the emails alleged to have delivered the alleged documents that did not prove sent or delivered to, and receipt by Couillard, and only heard vague he said/she said testimony did not preclude finding clear and convincing evidence that Couillard did receive the emails, then download and discuss the attached documents as sufficient proof Couillard violated Rule 4-8.4(d). To successfully challenge a referee's findings before this Court, a respondent must demonstrate that there is no evidence in the record to support the referee's findings or that the record evidence clearly contradicts the conclusions. See Florida Bar v. Elster, 770 So.2d 1184, 1185 (Fla. 2000).

Argument on the Merits

The Referee abused her discretion by failing to make a finding consistent with the evidence presented by failing to apply the proper quantum standard of evidence, i.e. “clear and convincing.” A review of the testimony in the transcripts show that Complainant’s computer forensic expert Kevin C. Stout’s testimony repeatedly contradicts itself and the facts alleged. At deposition, he repeatedly testified there was no proof the emails ever left Selden’s computer.


Stout testified at final hearing the received date proved the emails were sent but could not show when. Stout did maintain there is no proof of delivery to or receipt by Couillard. “Such corroborating evidence must also meet the standard of clear and convincing evidence.” (Slomowitz v. Walker). Had the Referee ordered the rehearing, Stout in conversation with Couillard, admitted that he is willing to execute an affidavit and testify stating: (1) he is not an outlook express expert; (2) he does not know what causes the received date of the header to be filled in, he was guessing; and (3) with the exception of exhibits 13 and 14, all the other emails he found on Selden’s computer had full and complete headers as plead in Couillard’s motion for rehearing. Stout contradicted and recanted his testimony again. Couillard’s computer forensic expert Michael Anderson maintained throughout his letter, deposition and final hearing testimony that the emails cannot be proved to have ever left Selden’s computer, been sent, delivered to or received by Couillard. Anderson did testify that even had the emails been sent, they would have been blocked by filters because Couillard’s email address is protected by AKO/DKO filters, Couillard’s exhibit F. Anderson’s clear and convincing corroborating evidence was not acknowledged in the Report.

The Complainant never subpoenaed the army email from the army.


The Complainant never examined Couillard’s computer despite it being offered.

With the exception of Selden’s testimony that Couillard did receive the emails, there was no proof of sent, delivery or receipt. Reading the email evidence placed in front of him at hearing is not providing details from memory. Selden not only testified that he could not remember “word for word” but could not remember any specific details at all of the alleged conversations. Selden testified there was no record of local calls on his phone bill. None of Selden’s allegations of Couillard’s attorney misconduct in his initial complaint could be corroborated or verified by evidence or other witness testimony. “Additionally, petitioner’s testimony concerning the disqualifying offenses was quite vague. He professed to being unable to remember details of the offenses or of their disposition. . . . does not clearly and convincingly establish his rehabilitation.” See B.J. v. Dept. of Children and Family Servs., 983 So.2d 11 (Fla. App., 2008).

“Clear and convincing evidence has been defined as an: intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witness must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” See M.E. v. Florida Department of Children and Families, 1 So.3d 268 (Fla. App., 2009).


Selden’s testimony was vague, evasive and three times he misidentified his own documents he claimed were attached to the emails. This final draft of his motion submitted to the trial Court by Selden (Exhibit 15) was never proven to have been attached to any email in any evidence or was it ever proven to have been delivered to or received, reviewed or advised upon by Couillard, as Selden testified three separate times. Selden lied three times under oath in Court before the Referee. Selden’s testimony at hearing contradicts his initial complaint statements made under the penalty of perjury and also contradicts his sworn deposition testimony concerning attorney Samantha Stevins. All three witnesses listed by name in his initial complaint negated his allegations despite Selden testifying he stood by these allegations. Selden stated the wrong trial Judge entered the disqualification order on his own case. Selden testified that he used the testimony of an opposing party witness, Selden himself labeled a liar, to corroborate his allegations.

In Florida Bar v. Fredericks, 731 So.2d 1249, 1251 (Fla. 1999) arguing complaining witness testimony was insufficient proof to convict, See Florida Bar v. Rayman, 238 So2d 594, 597 (Fla. 1970)( stating that evidence sufficient to sustain a charge of attorney misconduct where the attorney has denied the act under oath “must be clear and convincing and that degree of evidence does not flow from the testimony of one witness unless such witness is corroborated to


some extent either by the facts or circumstances”)(quoting In re Martin, 67 N.M. 276, 354 P.2d 995, 998 (1960)); State ex rel. Florida Bar v. Junkin, 89 So.2d 481 (Fla. 1956)(holding that testimony of complaining witness was insufficient to support finding of misconduct and recommendation of disbarment where the testimony was evasive and inconclusive and did not establish the relevant facts with any degree of certainty).

The Court ruled against Fredericks because “he does not specifically point out any important deficiencies in the testimony. Further. A review of Winston’s testimony reveals no major inconsistencies. In fact, with the exception of some confusion regarding specific dates, Winston’s testimony was surprisingly detailed considering the lapse of time involved.” Also in Slomowitz v. Walker, Black’s Law Dictionary (4th ed. 1968) at 318 defines clear evidence or proof as “evidence which is positive, precise and explicit, which tends directly to establish the point to which it is adduced and is sufficient to make out a prima facia case.” More detailed definitions of clear and convincing evidence require: “[T]he witness to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witness must be lacking in confusion as to the facts at


issue.” citing Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816, 824 (1979). In Slomowitz v. Walker, The Florida District Court held, “Our review of the forgoing cases convinces us that a workable definition of clear and convincing evidence must contain both qualitative and quantitative standards. We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Throughout this case, Couillard denied ever receiving these emails. Both of the computer experts testimony corroborated no proof of sent or delivery to or receipt by Couillard. He said/she said evidence is insufficient to prove clear and convincing evidence. If the Court has to weigh two conflicting statements, that’s not clear and convincing evidence. See In re Oca, Inc., 551 F.3d 359 (5th. Cir., 2008).

There is no corroborating specific proof of any details in the record where Couillard continued to provide legal advice and counsel


to include assisting with the drafting and editing of documents to be filed with the court providing drafting and editing advice after disqualification. Testifying an event happened without corroboration and also without ever providing any details whatsoever is vague “he said/she said” evidence. Selden’s vague repetition of Complainant’s accusations does not meet the required standard proof of clear and convincing evidence. At most, Selden’s testimony only proved vague “he said” testimony at best.

The Report of the Referee cannot be upheld because it’s findings of fact and recommendations as to guilt are inconsistent with the evidence presented. The Referee abused her discretion by failing to apply the proper quantum standard of evidence, i.e. “clear and convincing” to uncorroborated he said/she said testimony. The Referee’s findings of fact and recommendations as to guilt are clearly erroneous and are without support in the record. Upholding this Referees findings of fact and recommendations as to guilt is a clear violation of well established precedent and will result in more innocent attorney’s being erroneously found guilty of actions they did not do.

ARGUMENT POINT TWO

THE REFEREE ABUSED HER DISCRETION AND ERRED BY FAILING TO GIVE PROPER WEIGHT TO CERTAIN WITNESS TESTIMONY


The Supreme Court of Florida has jurisdiction for review pursuant to


Article V, Section 15, of the Constitution of the State of Florida. Florida Evidence Code §90.301-§90.304 provides for presumption affecting burden of proof. Florida Evidence Code §90.401 and §90.402 provides for relevant evidence. Florida Evidence Code §90.701 and §90.703 provides for opinion testimony of lay witness on ultimate issue. Credible testimonial evidence must include details and must also be corroborated to show that emails were sent and delivered to Couillard, that Couillard received those emails and that Couillard downloaded the attached documents and discussed those attachments in order to support a finding that Rule 4-8.4(d) was violated (Slomowitz v. Walker).

The quatum of proof required for the above substantive testimonial evidence is “clear and convincing” (Slomowitz v. Walker). “[t]he referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect.” See Florida Bar v. Thomas, 582 So2d 1177, 1178 (Fla. 1991).

The Referee abused her discretion and erred by giving undue weight to Martin Selden’s testimony when it was refuted by three of Selden’s own witnesses, including two attorneys and Selden himself. The Referee gave this undue weight to Selden’s testimony despite the fact that none of his claims of Couillard’s attorney misconduct contained in his initial complaint could be


corroborated or verified by any evidence or other named witness testimony. The Referee specifically erred by failing to apply the proper quantum standard of evidence, i.e. “clear and convincing” in finding “the testimony of Selden as set forth above credible and accept his representations that he and Coulliard exchanged emails (Exhibits 13 and 14) and spoke on the telephone about Exhibit 15. Coulliard’s attempt to impeach Selden’s testimony on collateral matters was unsuccessful.” supports her recommendation that Complainant met it’s burden of proving by clear and convincing evidence that Respondent violated Rule 4-8.4(d) of the Rules Regulating the Florida Bar. To successfully challenge a referee's findings before this Court, a respondent must demonstrate that there is no evidence in the record to support the referee's findings or that the record evidence clearly contradicts the conclusions. See Florida Bar v. Elster, 770 So.2d 1184, 1185 (Fla. 2000).

B. Argument on the Merits

The Referee abused her discretion by giving undue weight to Martin

Selden’s testimony when it was refuted by three of Selden’s own witnesses,

including two attorneys and Selden himself. A review of the testimony in the

transcripts show that Selden’s testimony was contradictory, evasive, vague and

did not sufficiently support complainant’s accusations. Complainant only has

Selden’s testimony that he sent the emails, Couillard received the emails,


downloaded the attachments and then discussed them over the telephone as

proof of sent, delivery or receipt. Selden’s reading of the evidence placed in

front of him at hearing is not providing details from memory. Selden not only

testified that he could not remember “word for word” but could not remember

any specific details at all of the alleged conversations. Selden’s three witnesses

specifically refuted his claims.

Selden testified there was no record of local calls on his phone bill.

“Additionally, petitioner’s testimony concerning the disqualifying offenses was

quite vague. He professed to being unable to remember details of the offenses

or of their disposition. . . . does not clearly and convincingly establish his

rehabilitation.” (B.J. v. Dept. of Children and Family Servs.)

“Clear and convincing evidence has been defined as an: intermediate

level of proof [that] entails both a qualitative and quantitative standard. The

evidence must be credible; the memories of the witness must be clear and

without confusion; and the sum total of the evidence must be of sufficient

weight to convince the trier of fact without hesitancy.” (M.E. v. Florida

Department of Children and Families)

Selden’s testimony was vague, evasive and three times he misidentified his

own documents he alleged were attached to the emails. This final draft of his

motion submitted to the trial Court by Selden (Exhibit 15) was never proven to


have been attached to any email in evidence nor was it ever proven to have been

delivered to or received, reviewed or advised upon by Couillard, as Selden

testified to three times. Selden lied three times under oath in Court before the

Referee. Selden’s testimony at hearing also contradicts his initial complaint

claims made under the penalty of perjury and also contradicts his sworn

deposition testimony concerning attorney Samantha Stevins. All three

witnesses listed by name in his initial complaint negated his claims despite

Selden testifying he stood by these allegations. Selden stated the wrong trial

Judge entered the disqualification order on his own case. Selden testified that

he used the testimony of an opposing party witness, Selden himself labeled a

liar, to corroborate his allegations.

In Florida Bar v. Fredericks, arguing complaining witness testimony was

insufficient proof to convict, See Florida Bar v. Rayman, 238 So2d 594, 597

(Fla. 1970)( stating that evidence sufficient to sustain a charge of attorney

misconduct where the attorney has denied the act under oath “must be clear and

convincing and that degree of evidence does not flow from the testimony of one

witness unless such witness is corroborated to some extent either by the facts or

circumstances”) (quoting In re Martin, 67 N.M. 276, 354 P.2d 995, 998 (1960));

State ex rel. Florida Bar v. Junkin, 89 So.2d 481 (Fla. 1956)(holding that

testimony of complaining witness was insufficient to support finding of


misconduct and recommendation of disbarment where the testimony was

evasive and inconclusive and did not establish the relevant facts with any

degree of certainty).

The Court ruled against Fredericks because “he does not specifically

point out any important deficiencies in the testimony. Further. A review of

Winston’s testimony reveals no major inconsistencies. In fact, with the

exception of some confusion regarding specific dates, Winston’s testimony was

surprisingly detailed considering the lapse of time involved.”

Also in Slomowitz v. Walker, Black’s Law Dictionary (4th ed. 1968) at

318 defines clear evidence or proof as “evidence which is positive, precise and

explicit, which tends directly to establish the point to which it is adduced and is

sufficient to make out a prima facia case.” More detailed definitions of clear

and convincing evidence require: “[T]he witness to a fact must be found to be

credible; the facts to which the witnesses testify must be distinctly remembered;

the details in connection with the transaction must be narrated exactly and in

order; the testimony must be clear, direct and weighty, and the witness must be

lacking in confusion as to the facts at issue.” citing Modern Air Conditioning,

Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816, 824 (1979).

In Slomowitz v. Walker, the Florida District Court held “Our review of

the forgoing cases convinces us that a workable definition of clear and


convincing evidence must contain both qualitative and quantitative standards.

We therefore hold that clear and convincing evidence requires that the evidence

must be found to be credible; the facts to which the witnesses testify must be

distinctly remembered; the testimony must be precise and explicit and the

witness must be lacking in confusion as to the facts at issue. The evidence must

be of such weight that it produces in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the allegations sought to be

established.”

Throughout this case, Couillard denied ever receiving these emails. Both

of the computer expert’s testimony corroborated this. He said/she said evidence

is insufficient to prove clear and convincing evidence. If the Court has to weigh

two conflicting statements, that’s not clear and convincing evidence. In re Oca,

Inc., 551 F.3d 359 (5th. Cir., 2008).

There is no corroborating specific proof of any details in the record

where Couillard continued to provide legal advice and counsel to include

assisting with the drafting and editing of documents to be filed with the court

providing drafting and editing advice after disqualification. None of Selden’s

claims of Couillard’s Attorney misconduct contained in his initial complaint

could be corroborated or verified by any evidence or other named witness

testimony. Clearly this is not the required proof of clear and convincing


evidence. This is false and vague “he said” testimony at best.

The Report of the Referee cannot be upheld because it’s findings of

Selden’s credibility are inconsistent with the witness testimony and evidence

presented, and are also clearly erroneous and without support in the record.

Vague testimony to an accused action without corroboration and also without

providing any detail whatsoever is “he said/she said” and is insufficient to meet

the quantum of clear and convincing standard required.

ARGUMENT POINT THREE

THE REFEREE PREMATURELY HELD A SANCTIONS HEARING AND ABUSED HER

DISCRETION BY RECOMMENDING DISCIPLINE DISPROPORTIONATE TO THE PUTATIVE OFFENSE


The Supreme Court of Florida has jurisdiction for review pursuant to Article V, Section 15, of the Constitution of the State of Florida. Rule 3-7.6 of the Rules Regulating The Florida Bar provides that a sanction hearing be held after a finding of guilt. The Referee recommended Couillard be suspended from the practice of law for thirty (30) days and that he also be required to complete Ethics School and the Professionalism Workshop within six (6) months of the final order in this proceeding. Unlike the referee’s findings of fact and conclusions as to guilt, the determination of appropriate discipline is


peculiarly within the province of this Court’s authority. See Florida Bar v. O’Connor, 945 So.2d 1113, 1120 (Fla. 2006). However, generally speaking, this Court "will not second-guess a referee's recommended discipline as long as that discipline has a reasonable basis in existing caselaw." See Fla. Bar v. Lecznar, 690 So.2d 1284, 1288 (Fla. 1997).

B. Argument on the Merits

The Referee prematurely held a sanctions hearing without all required

conditions precedent and recommended discipline disproportionate to the

putative offense. As proven in argument point one, the Referee erroneously

found Couillard guilty of a single violation without sufficient evidence. The

Referee then prematurely held the sanctions hearing and further abused her

discretion by recommending Couillard suffer the same disciplinary sanctions

given for several rule violations. Counsel found no case law showing the

finding of a single rule violation warrants the same punishment for finding of

several rule violations.

Under the Florida Standards for Imposing Lawyer Sanctions, § 6.22,

Suspension is appropriate when a lawyer knowingly violates a court order or

rule, and causes injury or potential injury to a client or party, or causes

interference or potential interference with a legal proceeding.


Blacks Law Dictionary defines knowingly as: With knowledge;

consciously; intelligently; willfully; intentionally. An individual acts

“knowingly” when he acts with awareness of the nature of his conduct.

Other than Selden’s testimony, there is no proof that Couillard ever

knowingly violated the disqualification order. There also was no evidence that

Couillard caused injury or potential injury to a client or party, or causes

interference or potential interference with a legal proceeding. Selden never

testified about any results after he filed his motion (Exhibit 15), only that he lost

the case.

Complainant’s counsel submitted a memorandum of law for sanctions

citing legal authority from cases where all of the Respondent’s were found

guilty of violating several rules and were suspended. Counsel argued a stronger

sanction was warranted because Couillard was guilty of knowingly violating a

court order and demonstrated contempt and disrespect for the authority of the

trial court. There is no evidence showing Couillard ever demonstrated

contempt and disrespect for any authority.

MITIGATION

The Referee’s Report never mentioned any of Couillard’s character

witness testimony presented at the January 21, 2011, sanctions hearing.


Couillard presented substantial mitigation which he asks this Court to consider

in weighing the appropriate sanction for his erroneously convicted misconduct.

Witness Attorney Anthony Lawhon’s testimony directly negated

Complainant’s accusations of lack of respect for judicial authority. Lawhon

testified that Couillard always acted professional and never had a question

about his integrity or professionalism.

Witness Sergeant Major, Richard Holmes testified that Couillard does not

have a lack of respect for any authority and acts totally professional at all times.

Holmes testified Couillard’s integrity is of the highest standard and is always

truthful.

The Referee did note that however, that Coulliard adamantly denied

committing the alleged violation. Case law does not support the Referee’s

recommended discipline for a single rule violation be the same as that given for

several violations. Given the substantial mitigation presented, erroneous

findings of guilt and lack of evidence, Couillard submits that an appropriate

sanction in his case would be at most diversion, not suspension, and

respectfully requests this Honorable Court reject the recommendations of the

Referee and not suspend, but order Couillard to complete diversion or vacated

altogether.


CONCLUSION

Couillard now stands humbly before this Honorable Court asking for

relief, both at law and in equity.


I HEREBY CERTIFY that on June 29, 2011, that the original of the forgoing Brief in Support of Petition to Review, was furnished by email and regular U.S. Mail to Thomas D. Hall, Clerk of the Florida Supreme Court, The Florida Supreme Court, Attention: Clerk's Office, 500 South Duval Street, Tallahassee, Florida 32399-1927, and a true and correct copy of the forgoing has been furnished to Troy Matthew Lovell, Bar Trial Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496 and to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300 By: _________________________________

David M. Couillard, Esquire Florida Bar No.: 0469180 David M. Couillard, P.A. 1713 54

CERTIFICATE OF SERVICE

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[email protected]

Street SW Naples, Florida 34116 Business Phone: (239) 331-3979 Cell Phone: (239) 248-8526 Facsimile: (239) 963-8557

ATTORNEY FOR COUILLARD

I HEREBY CERTIFY that this brief complies with the font requirements of FLA.R.APP.P. RULE 9.210(a)(2). By: _________________________________

DAVID M. COUILLARD, ESQ.

CERTIFICATE OF COMPLIANCE

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DAVID MARK COUILLARD, THE FLORIDA BAR, INITIAL BRIEF OF DAVID MARK

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