IN THE SUPREME COURT OF FLORIDA (Before a Referee)

THE FLORIDA BAR, Supreme Court Case Complainant, No. S.C. 11-267 vs. The Florida Bar Files LAWRENCE PHILIP ZOLOT, 2010-51,051 (17C) Respondent. 2010-51,51,830 (17C)

RESPONDENT LAWRENCE PHILIP ZOLOT’S AMENDED INITIAL BRIEF ON APPEAL

Lawrence P. Zolot, Esq. 1011 S. Federal Highway Hollywood, FL 33020 FBN 185601 (954) 981 7116

TABLE OF CONTENTS

Table of Citations -i- Symbols and References P. 1 Statement of the Case Pp. 2-4 Statement of the Facts Pp. 5-16 Summary of Argument Pp. 17-20

Argument Pp. 21-33

I. LAWRENCE PHILIP ZOLOT SHOULD NOT BE DISBARRED FOR REPRESENTATION OF NEWEL HOLLINGSWORTH II. THE ISSUES CONCERNING JORGE CALIXTO ARE NOT THE SUBJECT OF BAR DISCIPLINE III. THE REFEREE SHOULD NOT HAVE AWARDED THE BAR’S COSTS BECAUSE THE RESPONDENT DID NOT HAVE AN OPPORTUNITY TO PREPARE FOR THE COST HEARING AND HE NEVERTHELESS PROVED THAT THERE WERE EXCESSIVE AND UNPROVEN CHARGES Conclusion P. 34 Certificate of Service P. 35 Certificate of Font Size P. 36 Appendix -ii-

TABLE OF CITATIONS Cole v. Kehoe, 710 So.2d 705 (Fla. 4th DCA 1998) P. 27 Community Federal Savings and Loan Association v. Luckenbach, 463 Pa. 472, 261 A. 2d 327, 329-330 (1970) P. 27 Eichman v. Paton, 393 So2d 655 (Fla. 1st DCA 1981) P. 27 Florida Bar v. Corces, 639 So. 2d 604 (Fla. 1994) P. 23 Florida Bar v. Kassier, 730 So.2d 1273 (Fla. 1998) P. 31 Florida Bar v. MacMillan, 600 So. 2d 457, 460 (Fla. 1992) P. 24 Florida Bar v. Pape, 918 So.2d 240 at 243 (Fla. 2005) P. 21

The Florida Bar v Rayman, 238 So.2d 594 (Fla. 1970) P. 30

Florida Bar v. Schiller, 537 So. 2d 993 (Fla. 1989) P. 23 Florida Bar v. Tauler, 775 So. 2d 944 (Fla. 2000) P. 24 Florida Bar v. Thomas, 698 So. 2d 530 (Fla. 1997) P. 23 Florida Bar Rule 4-3.1 P. 30

Florida Bar Rule 5-1.1 P. 25

Fla. Rule of Appellate Procedure 9.020 P. 29

Fla. Stds. Imposing Law. Sancs. 9.3 P. 24

Florida Rule of Civil Procedure 1.090(d) P. 32

-i-

SYMBOLS AND REFERENCES

For the purpose of Respondent's Initial Brief on Appeal, Lawrence Philip

Zolot will be referred to by name or as Respondent, and the Florida Bar will

be referred to as The Florida Bar or the Bar. Other persons will be referred

to by their respective surnames.

References to the transcript of the final hearing will be set forth as T and

page number. References to the Report of Referee will be set forth as R and

page number. References to the telephonic hearing on costs will be set forth

as H and page number. References to the Bar’s exhibits introduced at trial

will be set forth as FBX. Respondent’s exhibits will be referred to RX.

1

STATEMENT OF THE CASE

Lawrence Philip Zolot was admitted to the Florida Bar in 1974.

On or about November 23, 2011 the Florida Bar filed a Petition for

Emergency Suspension with the Supreme Court based on two separate

complaints, one by former personal injury client Newell Hollingswoth,

Florida Bar Case Number 2010-51,051 (17C), and one by Jorge Calixto, the

husband of Yamile Calixto, Respondent’s family law client, Florida Bar

Case Number 2010-51,830 (17C), alleging that Lawrence Philip Zolot had

“failed to handle trust funds appropriately” in the two cases and attached an

affidavit from its auditor along with other documents to justify the Petition.

The Court granted the Petition for Emergency Suspension in Case SC10-

2263 on December 13, 2010, ordering the Respondent to cease representing

any clients within thirty days and to take various other steps to suspend his

practice, which were complied with.

The Florida Bar then filed a Complaint against Lawrence P. Zolot in the

instant case on or abut February 9, 2011 based on the same facts and

documents it had alleged in its Petition for Emergency Suspension, claiming

in the two client matters violations of the Florida Bar Rules of Professional

Regulation in three counts: in Count I “Dishonesty;” in Count II

“Substantive Trust Account Violations;” and in Count III “Failing to

Maintain Trust Accounting Records and Failing to Follow Procedures.”

The case was assigned by the Florida Supreme Court to the Fifteenth

Judicial Circuit and it appointed County Court Judge Frank Castor as the

Referee.

On March 22, 2011 Lawrence Philip Zolot served and filed a general denial

of the Bar’s allegations and then after a court order allowing amendment to

his Answer on June 14, 2011 he pleaded affirmative defenses to the

Complaint (The Order permitting amendment and the affirmative defenses

amendment do not appear to be papers docketed by the Clerk of the Supreme

Court so they are attached hereto in the Appendix).

A final Hearing was held on August 25, 2011. At its conclusion the Referee

directed the Florida Bar’s counsel to prepare a Report finding Lawrence

Philip Zolot guilty of all the allegations in the Bar’s Complaint, ordering him

disbarred for five years, nunc pro tunc, with restitution in the amount of

$130,911.50.

On September 7, 2011 the Bar filed a Request for Payment of Disciplinary

Costs in the amount of $9,755.

On September 9, 2011 the Referee signed the Report, including the cost

award from the Bar’s September 7, 2011 Motion.

Lawrence Philip Zolot objected to the Complainant’s Request for Payment

of Disciplinary Costs on September 12, 2011 and the Court held a brief

telephonic hearing on less than one day’s notice on the issue on September

21, 2012, at which time the Referee denied the Respondent’s objections to

the costs.

The Respondent filed a timely Petition for Review of the Referee’s Report

on November 8, 2011.

4

STATEMENT OF THE FACTS

Since 1974 Lawrence Philip Zolot has been a member of the Florida legal

community without incident until this present case (R 19 and 20), an AV

rated attorney focusing on litigation (T 251), and a community leader

praised in these proceedings by fellow members of the Florida Bar including

former Florida Attorney General Bob Butterworth (R 20-21).

The Respondent admitted at the hearing on August 25, 2011 that he

committed technical violations of the Rules Regulating the Florida Bar and

expressed regret for those infractions (T 32; see also FBX 1-p6 for trust

account errors), which were addressed by Count III of the Florida Bar’s

Complaint herein.

The focus of the August 25, 2011 final hearing and the Referee’s Report

were the allegations of acts of dishonesty and substantial trust account

violations against Lawrence Philip Zolot concerning Newell Hollingsworth

and Jorge Calixto.

5

NEWELL HOLLINGSWORTH

Lawrence Philip Zolot was retained by Mr. Newell Hollingsworth, a

disgruntled personal injury client, who had discharged his prior attorney,

Bradley Hartman. Mr. Hartman had misfiled his case and then

unrealistically boosted Mr. Hollingsworth’s expectations. The Respondent

corrected all the prior attorney’s litigation mistakes concerning jurisdiction

and parties, and objectively informed the client about his prospects,

including recovery of his son’s property damage from the automobile

accident, which had not been demanded previously. After litigation activity

the Respondent obtained an agreement from the client that the case could be

settled for $35,000 if all bills, costs and fees were covered including his

son’s claimed losses, even if it netted Mr. Hollingsworth no money (FBX -

Tab 33-September 7, 2001 letter, T 112).

When the case was settled with the third party for $35,000, Mr.

Hollingsworth’s prior attorney demanded an exorbitant attorney’s charging

lien, in light of his miscues in the case, which had to be litigated for over a

year. Once the trial court resolved the lien for much less than the fee and

cost demand (FBX2-Nov., 2002), Mr. Hollingsworth, as testified to by the

Respondent without contradiction at the disciplinary hearing, reneged on his

authority to settle for no net to him given September 7, 2001, because he

was upset that the charging lien came out of his funds, causing a years long

delay of payment to anyone, in tandem with issues over medical providers

refusing to take less than their full medical bills or being missing (T 101,

111, FBX1-p54-56). Mr. Hollingsworth’s only real complaint was his

perceived lack of communication with the Respondent by telephone in 2009;

he said that he “trusted” Lawrence Philip Zolot at all times and would see

him periodically (T 113 and 115).

Mr. Hollingsworth and all others were made whole and only Mr.

Hollingsworth’s intransigence caused delay (T 250-251). The Respondent

received by agreement less than a full fee (FBX1-Tab 7-p48-the closing

statement). When Mr. Hollingsworth met with Lawrence Philip Zolot in

March 2010 he agreed to a net on a closing statement giving him a $6,150

recovery, Then when he came to the attorney’s office on April 2, 2010, he

demanded $10,000, once again changing the terms of his authority, as he

previously had (and as he did with his prior discharged attorney, see FBX2-

Hartman and Goldfarb Contingency Fee Agreement October, 1998). The

Respondent agreed to the demand to close the matter (FBX1-Tab 10, pp54-

56, 78-79).

A delay occurred in mailing checks to health care providers because of the

odd behavior of Mr. Hollingsworth and his son in not cashing their checks

for a substantial time after April 2, 2010, causing the Respondent to question

what should be done considering the client’s prior inconsistencies (FBX1-

Tab 10-pp.54-56, 78-79).

In his Affirmative Defenses concerning Mr. Hollingsworth the Respondent

stated that all funds the client was entitled to had been distributed to him and

he had suffered no harm.

JORGE CALIXTO

In April, 2005 Jorge Calixto’s wife, Yamile Calixto, executed a Fee

Agreement retaining Lawrence Philip Zolot for dual cases of domestic

violence and dissolution of marriage issues; the agreement included Florida

Bar approved language that stated

8

The Firm shall have a lien on its office files, documents, property or money in its possession for the payment of all sums due it under this Agreement. I/We further authorize the Firm to draw against any monies held by it in trust in connection with the subject matter of this Agreement at any time for fees and costs.

It is specifically agreed that LAWRENCE P. ZOLOT, ESQ. shall have and is hereby granted all general, possessory and retaining liens and all equitable, special and attorney's charging liens upon the client's interest in any and all real and personal property within the jurisdiction of the Court for any balance due, owing and unpaid at the conclusion of the case or the sooner termination of employment. Additionally, notwithstanding any specific right or remedy set forth hereinabove, legal, equitable or otherwise, any right or remedy shall not be exclusive, but shall be accumulative upon all other rights and remedies set forth herein, or allowed by this Agreement or by law. (Rx 1, pp134-135).

After the dissolution aspect of the family law disputes commenced the

parties sold their jointly owned marital residence for net proceeds of

$151,536 and pursuant to an agreement between them the funds were

deposited into Lawrence Philip Zolot’s trust account (FBX1-Tab 14, p40)

and FBX1-Tab19).

Both the dissolution and domestic violence cases were heavily litigated. See

the docket sheet for the Dissolution case was put into evidence by the

Florida Bar (FBX1-10). Mr. Calixto was the subject of multiple domestic

violence injunctions and was not permitted to see his children because of his

actions (FBX1 Tab13, pp. 106-112).

Demonstrating Mr. Calixto’s volatility and threatening nature, the

Respondent provided the Florida Bar a partial transcript of the May 24, 2006

hearing held in the family law case in which tapes of Mr. Calixto’s

telephone calls to his wife after the institution of the cases were played in

their original Spanish and translated for the trial judge by a certified

translator (FBX1-pp.84-101). In the tapes, Mr. Calixto uses numerous

expletives and racial epithets to threaten Mrs. Calixto and her new boy

friend, leaving no doubt that the marriage has been irreparably broken and

documenting the reason she feared for her and her children’s safety:

I am not going to mess around with this. You should be ashamed of yourself for allowing this thing. I am going to go with cops, court, everything. This is going to go to hell. Okay? Because this animal, a------, f------ m----- f-----…(R 1) (FBX1-Tab 13, p. 98).

At the Respondent’s disciplinary hearing, Mr. Calixto confirmed that he was

the subject of multiple domestic violence injunctions (T 207). He further

acknowledged that he had a verbal agreement with Mrs. Calixto that house

funds were going to be paid to her (T 205-206). The Final Judgment made

no equitable distribution, only awarding child support and alimony (FBX

11). Mr. Calixto testified he knew his attorney, Martin Levine, had objected

to the Final Judgment that the trial judge signed on July 31, 2007, and that

years went by without Mr. Levine or the court taking action on his

objections (T 205-206). Mr. Calixto called his lawyer on occasion

regarding creditor contacts but his lawyer never took any action with the

court or the creditors and ultimately he fired Mr. Levine (T 206). The debts

were in Mr. Calixto’s name alone (T 168).

The Final Judgment of Dissolution of Marriage was signed by the trial judge

on July 31, 2007 (FBX11) but Mr. Calixto’s attorney served a Motion to

Alter or Amend Final Judgment or in the Alternative for a Re-Hearing on

August 10, 2007, challenging all the trial judge’s rulings including the

financial issues (FBX1-Tab 13, pp. 141-146). As a consequence the Final

Judgment never became a final order. The docket sheet for the case clearly

demonstrates its lack of finality; the Husband’s Motion is docketed but not

the Final Judgment (FBX 10).

The husband’s attorney, Mr. Levine, agreed that Florida Rule of Appellate

Procedure 9.020 states that a final order with respect to any claim between

the movant and any party against whom relief is sought by the motion or

motions shall not be deemed rendered with respect to any claim between the

movant and any party against whom relief is sought by the motion or

motions, until the filing of a signed written order disposing of all such

motions between such parties (T 179). He claimed that he called the trial

judge’s office but never got a ruling on his motion (T171). The Referee

erroneously commented at the disciplinary hearing “So the final judgment

still stands.” (T 172).

The Florida Bar’s auditor, during the conduct of his compliance audit in this

case, found that by court order $20,590 had been paid out of Respondent’s

trust account, and that Mrs. Calixto had otherwise received another $24,625

from the funds (FBX1-p. 9). Lawrence P. Zolot had filed fees in the

domestic case alone of $47,330 (FBX 14) and the auditor acknowledged that

he did not know how much was charged in the separate domestic relations

matter. (T 227-228). Disbursements to Mrs. Calixto and Lawrence Philip

Zolot for his fees did not start until after Mr. Calixto’s threats to her in court

in May, 2006.

12

Concerning Calixto, the Respondent stated in his affirmative defenses that

the Rules Regulating the Florida Bar concerning Trust Accounts did not

preclude the retention of money or other property upon which a lawyer had a

valid lien for services nor did it preclude the payment of fees from the

proceeds of transactions or collection; further that the Rules Regulating the

Florida Bar concerning Trust Accounts state that controversies as to the

amount of fees are not grounds for disciplinary proceedings unless the

amount is clearly excessive, extortionate or fraudulent; and finally that he

had a right to all funds taken from the Trust Account that were complained

about as the Wife’s retainer agreement specifically permitted him to draw

against any monies held in trust in connection with the subject matter of the

Agreement at any time for fees and costs, and due to the facts of the case

Lawrence Philip Zolot had the right to withdraw them.

COST HEARING

On September 7, 2011 the Bar served a Request for Payment of Disciplinary

Costs in the amount of $9,755 (See Statement of Costs attached in

appendix).

13

On September 9, 2011 the Referee signed the Bar prepared Report, including

the cost award from the Bar’s September 7, 2011 Motion, but the Report was

not mailed by the Referee’s office until September 13, 2010 (H 5).

Lawrence Philip Zolot objected to the Complainant’s Request for Payment

of Disciplinary Costs on September 12, 2011 and the Court held a brief

telephonic hearing on the issue on September 21, 2012, at which time the

Referee denied the Respondent’s objections to the costs (H 1-28).

That hearing was held on less than 24 hours notice to the Respondent (See

appendix with copy of facsimile to Florida Bar counsel and Lawrence P.

Zolot dated September 20, 2011 at 3:15 PM for a hearing by telephone

September 21, 2011 at 11:30 AM)

At the telephone hearing the morning after the faxed notice The Florida Bar

claimed that its auditor spent 130 hours on the compliance audit in the case

but did not provide any invoices or spread sheets to prove the documentation

of the claimed hours and charged the auditor’s time at $47 per hour, even

though he is paid only $58,000 annually, which on a weekly basis is

substantially less than the stated hourly claim (H 16).

None of the other costs on the Statement of Costs were documented by

invoices or bills (H 6).

MITIGATING FACTS

Lawrence P. Zolot had bi-lateral hip replacement surgery on June 26, 1997

after being unable to work for almost a year prior to his operation. The

recovery period took another year. As a consequence he fell behind on

paying personal income taxes and the federal government sought to seize

money from his office account. Ultimately, to avoid seizures for a limited

period of time until he worked out a settlement plan with the United States,

fees that were earned in the cases subject to the present Florida Bar action

were kept in the trust account and some of Lawrence Philip Zolot’s personal

bills were paid directly from the trust account (T 236-238). The period of

time was limited to approximately two years (T 238).

15

The Florida Bar did not claim that Newell Hollingsworth was not restituted

in his case. However the Referee did not find as a mitigating factor that

Lawrence Philip Zolot had made restitution to the personal injury client as a

mitigating factor (See Referee’s Report).

The Florida Bar did not claim that the Respondent was uncooperative during

the pendency of its investigations and the disciplinary proceedings. To the

contrary, the Bar’s trial exhibits document the numerous inquiries and all the

responses made by Lawrence Philip Zolot, and also demonstrate his

appearance at a pre-hearing deposition at which time he answered all

questions Bar counsel posed (see Florida Bar trial exhibit). The Referee did

not find as a mitigating factor that the Respondent had at all times been

cooperative in these matters.

The Referee found that Lawrence Philip Zolot has a strong reputation for

having good character in the community and been a respected member of the

Florida Bar for a substantial period. The Referee also found that he spent

numerous volunteer hours for the City of Hollywood, Florida in its youth

sports programs (R19-20).

SUMMARY OF ARGUMENT

As the Respondent admitted at the hearing on August 25, 2011, he did

commit technical violations of the Rules Regulating the Florida Bar and

regreted those infractions.

However, he did not commit dishonest or substantive violations of the Rules

justifying disbarment nunc pro tunc. While the Court generally defers to a

referee's findings of fact, "where there are no genuine issues of material fact

and the only disagreement is whether the undisputed facts constitute

unethical conduct, the referee's findings present a question of law that the

Court reviews de novo."

The salient facts in this case are undisputed and therefore the Court should

review this matter de novo.

Regarding Newell Hollingsworth, in instances of claimed mishandling of a

client's funds, where the money was replaced and the client was unharmed,

this Court has approved discipline of the attorney for as little as a 90 day

suspension, and certainly not disbarment, as the Referee herein ruled.

Regarding Calixto, it is well settled that Florida law specifically permits

retaining liens. Controversies as to the amount of fees due under a retaining

lien are not grounds for disciplinary proceedings unless the amount is clearly

excessive, extortionate, or the demand is fraudulent. The portion due a

lawyer may be withdrawn from a trust account as a retaining lien. In this

case Lawrence Philip Zolot’s fees were neither excessive, extortionate or

their demand fraudulent. The Referee should not have ruled on discipline

regarding Calixto’s matters or ordered restitution.

The Respondent’s fees were from monies deposited into his trust account

from the sale of a joint residence. Mr. Calixto knew he was going to lose

the money and for him it was always issues over his children, and his Wife

living with a person of color. “A tenancy by the entireties may be severed by

the implied actions of the parties, including felonious acts on a spouse.” Mr.

Calixto committed assault on his wife and threatened her and everyone else

in the case, destroying the unity of marriage. Mr. Calixto’s stonewalling,

vulgarity, contentiousness including filing a Motion objecting to the Final

Judgment that he never had heard, all displayed in papers provided to the

Bar, caused any ultimate injury he may have suffered, not the Respondent’s

actions.

In addition, that section of the Report regarding the Florida Bar’s costs must

be eliminated or reduced. Under principles of due process, the Respondent

has the absolute right to challenge any costs that were unnecessary,

excessive, or improperly authenticated. The Respondent was denied this

right. As a consequence, the claimed auditor’s costs were unlawfully

awarded.

Furthermore, as the Florida Bar can only prove at most one of its three

counts against the Respondent, that dealing with the least grievous of

accusations, the Bar should only be awarded a percentage of its claimed

costs, or else the Referee has committed an abuse of discretion.

Since the undisputed facts do not constitute unethical conduct with regards

to Counts I and II of the Florida Bar’s Complaint, the Referee's findings

present a question of law that this Court should review de novo and take into

account Lawrence Philip Zolot’s explanation for the technical violations that

occurred pursuant to Count III of the Complaint. As the Respondent

testified, he had double hip replacement surgery which resulted in financial

issues leading to the trust account actions. Although those acts were a

violation of the Rules of Professional Responsibility they do not necessarily

constitute a disbarment offense under the Standards for Imposing Lawyer

Sanctions.

The attorney's trust account violations were technical in nature, the

Hollingsworth money was replaced and the client unharmed, and in Calixto

the fees were condoned under the Florida Bar Rules, and thus in the

circumstances of the present case disbarment is not the proper discipline.

Suspension for time served, already sixteen months, is appropriate in light of

Lawrence P. Zolot’s known character, reputation as a lawyer, and

contributions to the good name of the Florida Bar for his legal and civic

contributions.

20

ARGUMENT

As the Respondent admitted at the hearing on August 25, 2011, he did

commit technical violations of the Rules Regulating the Florida Bar and

regrets those infractions.

However, he did not commit dishonest or substantive violations of the Rules

justifying disbarment nunc pro tunc. While the Court generally defers to a

referee's findings of fact, "where there are no genuine issues of material fact

and the only disagreement is whether the undisputed facts constitute

unethical conduct, the referee's findings present a question of law that the

Court reviews de novo." Florida Bar v. Pape, 918 So.2d 240 at 243 (Fla.

2005).

The salient facts in this case are undisputed and therefore the Court should

review it de novo.

I. LAWRENCE PHILIP ZOLOT SHOULD NOT BE DISBARRED

FOR REPRESENTATION OF NEWELL HOLLINGSWORTH

Regarding Newell Hollingsworth, in instances of mishandling of a client's

funds, where the money was replaced and the client was unharmed, this

Court has approved discipline of the attorney for as little as a 90 day

suspension, and certainly not disbarment, as occurred in this case.

Lawrence Philip Zolot, without dispute in the record, netted Mr.

Hollingsworth more than he would have received had the prior lawyer

settled his case, provided for his medical bills, saw that his son was

reimbursed for his claimed losses, fully litigated the prior attorney’s

charging lien protecting Mr. Hollingsworth’s recovery from far greater

diminution than actually occurred, and reduced his attorney’s fee in light of

the client’s continuing changing posture over these issues. If any medical

bills accounted for have not been paid then the money is in the Respondent’s

trust account for distribution. Mr. Hollingsworth received full restitution.

There is no dispute that the client’s intransigence made for the delay. When

he was willing to execute a closing statement he received a net that was

more than a straight interpretation of his standard fee agreement and the

facts would have produced for him.

The foregoing is uncontroverted in the record and under the case law

justifies no more than a suspension of the Respondent.

Even in misappropriation cases, which Hollingsworth is not, this Court has

made distinctions between isolated instances of misconduct and continuing

patterns of misconduct. See Florida Bar v. Thomas, 698 So. 2d 530 (Fla.

1997) (imposing ninety-day suspension where attorney misappropriated

funds and took an excessive fee but had no prior disciplinary record and

misconduct was isolated incident); Florida Bar v. Corces, 639 So. 2d 604

(Fla. 1994) (suspending attorney for two years for using client funds to pay

personal bills, where misappropriation was an isolated incident and attorney

had fully repaid debt). “[T]he extreme sanction of disbarment is to be

imposed only ‘in those rare cases where rehabilitation is highly improbable.”

Florida Bar v. Schiller, 537 So. 2d 993 (Fla. 1989) (misusing client funds

warranted three year suspension where clients were not injured and attorney

was “genuinely remorseful” and a good candidate for rehabilitation).

Further justification for discipline but not disbarment is found in the Florida

Standards for Imposing Lawyer Sanctions, which state that a referee can

consider mitigation when determining a recommendation for discipline, even

when the presumption is disbarment. See Florida Bar v. MacMillan, 600 So.

2d 457, 460 (Fla. 1992); Fla. Stds. Imposing Law. Sancs. 9.3 (mitigation).

In Florida Bar v. Tauler, 775 So. 2d 944, 948 (Fla. 2000), a case also

involving claimed misappropriation of client funds, the Court held that the

potential for rehabilitation was a significant factor in support of the referee’s

recommendation of suspension over disbarment. The violations and

mitigation found in Tauler are very similar to those in the instant case.

Tauler was found guilty of misuse of client funds and the referee found in

mitigation “personal and emotional problems, positive character and

reputation, timely and good faith restitution, full and free disclosure, and

remorse.” Id. at 945. Success of rehabilitation further supports suspension

over disbarment.

There is no question that the following mitigating factors all apply to the

Respondent’s discipline issues in Hollingsworth:

a. Lawrence Philip Zolot made restitution;

b. Personal physical problems of the Respondent’s led to a temporary tax

issue that is now three years past making rehabilitation likely;

c. Lawrence Philip Zolot’s good character, legal reputation and work in

the community--Calixto was not the first or last time that Lawrence Philip

Zolot by superior work protected those who were harmed from being lost in

“the system” and thereby upheld the highest purposes of the Florida Bar

(See RX 2-the Gallagher case in which a vicious mother’s effort to see her

husband put in jail for false claimed felony child abuse against their children

and his parental rights terminated were thwarted by the Respondent);

d. No prior bar discipline history;

e. Remorse expressed by the Respondent.

In light of the Court’s precedent in similar factual situations suspension for

time served and no more in Hollingsworth is appropriate.

II. THE ISSUES CONCERNING JORGE CALIXTO ARE NOT

THE SUBJECT OF BAR DISCIPLINE

Regarding the other complainant, Jorge Calixto, it is well settled that the

Florida Bar Rules specifically permit retaining liens. Florida Bar Rule 5-1.1

states in part

(c) Liens Permitted. This subchapter does not preclude the retention of money or other property upon which the lawyer has a valid lien for services nor does it preclude the payment of agreed fees from the proceeds of transactions or collection.

In April, 2005 Mr. Calixto’s wife, Yamile Calixto, executed a Fee

Agreement retaining Lawrence Philip Zolot for domestic violence and

dissolution of marriage issues; the agreement included Florida Bar approved

language that stated

The Firm shall have a lien on its office files, documents, property or money in its possession for the payment of all sums due it under this Agreement. I/We further authorize the Firm to draw against any monies held by it in trust in connection with the subject matter of this Agreement at any time for fees and costs.

It is specifically agreed that LAWRENCE P. ZOLOT, ESQ. shall have and is hereby granted all general, possessory and retaining liens and all equitable, special and attorney's charging liens upon the client's interest in any and all real and personal property within the jurisdiction of the Court for any balance due, owing and unpaid at the conclusion of the case or the sooner termination of employment. Additionally, notwithstanding any specific right or remedy set forth hereinabove, legal, equitable or otherwise, any right or remedy shall not be exclusive, but shall be accumulative upon all other rights and remedies set forth herein, or allowed by this Agreement or by law.

26

There is no dispute that Lawrence Philip Zolot’s fees in these cases were

earned and reasonable, nor that the fees were from monies deposited into his

trust account.

If the funds in question by the Bar were not erroneously claimed by Mr.

Calixto there would no basis for a Bar discipline case because usually the

Bar Rule regarding retention liens would govern.

The funds came from the sale of a joint residence, complicating this issue.

In Cole v. Kehoe, 710 So.2d 705 (Fla. 4th DCA 1998), the Court found that

joint funds can be the subject of an attorney’s fee lien. In Eichman v. Paton,

393 So2d 655 (Fla. 1st DCA 1981), the Court held that “a tenancy by the

entireties may be severed by the implied actions of the parties, including

felonious attacks on a spouse.” It further reiterated with approval that

“(o)ther jurisdictions have recognized that a tenancy by the entireties may be

severed during coverture ‘either by agreement of the parties, actual or

implied or by judicial intervention.’ Community Federal Savings and Loan

Association v. Luckenbach, 463 Pa. 472, 261 A. 2d 327, 329-330 (1970)”

(emphasis supplied). The husband in Eichman attacked his wife and she

needed the money from the joint funds that were being held in trust. The

Court held

We conclude, as did the trial judge, that the unity between the parties which forms the basis for the entireties form of ownership has been dissolved by appellant's felonious act and we consider that strong equitable principles would be frustrated by denying the only practical remedy now available in the wife's behalf which will allow the disastrous effects of appellant's wrongful act to be partially offset. Eichman id. at 657.

Jorge Calixto struck his wife leading to the first domestic violence

injunction, and then had continuing injunctions issued against him for truly

frightening later threats to his wife after he was enjoined from contacting

her. He conceded in the discipline hearing that he knew his wife was going

to receive the house funds. His lawyer, on his approval, objected to the

Final Judgment that the trial judge issued. Yet in his post trial motion he

never brought up the issue of equitable distribution, which was omitted in

the Final Judgment, because he and his lawyer, although the lawyer would

not concede it at the discipline hearing, obviously knew Mrs. Calixto had

received and made use of the house funds for her own needs--in the amount

of $24,625 in addition to other distributed cost monies, as he was not

complying with temporary alimony and child support awards during the

case, and that she had used funds to pay the Respondent for fees to protect

her against him.

Mr. Calixto, by filing the motion for rehearing of the Final Judgment

muddied the waters yet again concerning his case in a stonewalling move.

Florida Rule of Appellate Procedure 9.020 states in part that if a final order

has been entered and there has been filed in the lower tribunal an authorized

and timely motion for new trial or for rehearing the final order shall not be

deemed rendered with respect to any claim between the movant and any

party against whom relief is sought by the motion or motions until the filing

of a signed, written order disposing of all such motions between such

parties. The motion was never disposed of by the Court due to the non action

of the husband’s own attorney and therefore nothing in the Final Judgment

was dispositive on the parties. This non action further demonstrated that the

funds were never devoted for any specific purpose and per Eichman were

used to pay the wife’s fees. Mr. Calixto’s acts caused any ultimate injury

he may have suffered, not the Respondent’s actions.

In order for the Referee to have concluded that Respondent's actions

regarding the money he held in trust warranted disciplinary action with

restitution as part of the judgment, he would have had to find that

respondent's fee claim was "excessive, extortionate, or fraudulent." The fees

clearly were never argued at the hearing by the Bar to be excessive or

extortionate so all it is left with is the “fraudulent” argument. The Referee

should not have found any fraud based on the evidence so that the discipline

and restitution must be rescinded herein. The evidence would have to be

“clear and convincing” concerning fraud which is more than the

“preponderance” test in civil cases, The Florida Bar v Rayman, 238 So.2d

594 (Fla. 1970). The overwhelming evidence of Calixto’s domestic violence

injunctions, attacks, concession as to monies to go to his wife, failure to

object to the lack of equitable distribution, and delaying tactics with his post

trial motion all weigh against fraud by Lawrence P. Zolot. There is no clear

proof of fraud in Calixto and in fact the Rules Regulating the Florida Bar

concerning meritorious claims and contentions, Rule 4-3.1, state it is neither

frivolous and by clear extension not fraudulent to act on a lien for fees which

is already part of Florida jurisprudence, see Eichman, supra.

Therefore the Referee erred in finding that Lawrence P. Zolot had violated

the claimed Bar rules concerning deceit, fraud, and misrepresentation that he

relied upon in finding disbarrable offense with respect to Calixto.

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III. THE REFEREE SHOULD NOT HAVE AWARDED THE BAR’S

COSTS BECAUSE THE RESPONDENT DID NOT HAVE AN

OPPORTUNITY TO PREPARE FOR THE COST HEARING AND

HE NEVERTHELESS PROVED THAT THERE WERE EXCESSIVE

AND UNPROVEN CHARGES

In the Florida Bar v. Kassier, 730 So.2d 1273 (Fla. 1998) the Court held that

it was the responding attorney’s responsibility in a discipline case to prove

that costs were unnecessary, excessive, or unable to be separated between

proven and unproven charges.

In order to meet that burden a respondent should have both the billing or

invoice information for any Bar claimed costs and an opportunity to

investigate them through discovery or other means available under the

Florida Rules of Civil Procedure. Any hearing on a Request for Payment of

Disciplinary Costs should be governed by the same rules which require

adequate notice to a party.

In this case, the Bar certified that it served its Request on September 7, 2011

but it sent the Bar prepared Referee’s Report including its requested costs to

the Referee who signed it on September 9, 2011, and then did not mail it

until September 13, 2011. The Respondent objected to the claimed costs on

September 12, 2011 in response to receipt of the Bar’s Request and the

Referee set a hearing for September 21, 2011 in the AM by fax to the

Respondent on September 20, 2011, clearly violating Florida Rule of Civil

Procedure which requires reasonable notice to all parties regarding the

setting of a hearing, usually considered at a minimum four business days

(without factoring manner of service). See Florida Rule of Civil Procedure

1.090(d).

At the hearing on September 21, 2011, the Bar counsel argued it had no

obligation to give the Respondent any information other than the Request (H

7) and that it used the $47 per hour formula for the auditor costs on direction

from her superiors (H 14); and further the auditor testified he had only

periodic summaries to come up with his over 130 hours allegedly devoted to

the instant case (H 17). Under any version of the rules of evidence, the lack

of records or proof for the amount charged per hour (the Bar seems to be

making a profit on the hourly rate based on the auditor’s annual salary),

would have been adequate to find at the hearing, putting aside the lack of

notice, that the Respondent had proved that the auditor costs, let alone the

other undocumented costs, were excessive, or unable to be separated

between proven and unproven charges.

Despite these obvious evidentiary failings, the Referee awarded the Bar all

its costs. The Bar had its chance to provide the Respondent proof of their

costs, did not, and should not be allowed in this Referee’s report to assess

them.

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CONCLUSION

Lawrence Philip Zolot, the undersigned, truly regrets the violations of the

Florida Bar Rules regarding trust accounts that were committed. As proven,

there were issues that caused them, and not intent to do harm. The Referee’s

recommended discipline is far too harsh under the uncontroverted facts of

this case and the law.

There is no “victim” with respect to the Hollingsworth matter and full

restitution has been made.

The Calixto issues arose of attorney’s fee lien matters with husband Jorge

Calixto and were the results of his actions, the inaction of his attorney and

are not amenable to Bar discipline.

On the record in this case a de novo review demonstrates that the discipline

recommended by the Referee is unjustified, and suspension for time served

due to the Count III violations without restitution would be appropriate in

light of all the mitigating factors proved at the hearing. The costs assessed

in the Referee’s Report should not be approved.

CERTIFICATE OF SERVICE

I hereby certify a copy of the foregoing has been served by US mail on the

2nd day of May, 2012 to:

Ronna Friedman Young, Esq. The Florida Bar 1300 Concord Terrace Suite 130 Sunrise, FL 33323 Kenneth Lawrence Marvin The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399. __________________________ Lawrence P. Zolot, Esq. 1011 S. Federal Highway Hollywood, FL 33020 FBN 185601 (954) 981 7116

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CERTIFICATE OF FONT COMPLIANCE I hereby certify that Florida Rule of Appellate Procedure 9.210 (a)(2)

concerning font requirements has been complied with in this brief.

__________________________ Lawrence P. Zolot, Esq. 1011 S. Federal Highway Hollywood, FL 33020 FBN 185601 (954) 981 7116

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