IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, CASE NO: SC10-1790 Complainant, v. CARLTON PIERCE, Respondent. /

RESPONDENT’S REPLY BRIEF

Carlton Pierce, Esquire Carlton Pierce, P.A. P.O. Box 223723 West Palm Beach, FL 33422-3723 Ofc.: (407) 345-5258 Fax: (407) 536-4333 E-mail: c_pierce1@hotmail.com FBN: 0610879

Table of Contents

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-v Argument and Rebuttal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-14 Issues Presented Issue I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11 Rules 4-8.4(d) and 4-1.8(e) are unconstitutional. Issue II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13 Respondent’s due process rights were violated. Issue III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14 An affidavit that is drafted for a party becomes solely the signing party’s words. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Table of Citations and Other Authorities

Cases

Armour v. McMiller, 15 So.2d 923 (Fla. 5th DCA 2009). . . . . . . . . . 6, 8-9 Armstrong v. Pazarino, 812 So.2d 512 (Fla. 4th DCA 2002). . . . . . . 8 Barabas v. Barabas, 923 So.2d 588 (Fla. 5th DCA 2006) . . . . . . . . . 8 Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985). . . . . . . . . . . . . . . . . . . 6 Bridges v. State of California, 314 U.S. 252 (1941). . . . . . . . . . . . . . 1 Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). . . . . . . . . . . . . 8 Carbonell v. Dept. of Revenue, 30 So.3d 664 (Fla. 5th DCA 2010) . . 5, 7 Causin v. Leal, 881 So.2d 20 (Fla. 4th DCA 2004). . . . . . . . . . . . . . . 7 Cavalier v. Ignas, 290 So.2d 20 (Fla. 1974). . . . . . . . . . . . . . . . . . . . 12 Chetram v. Singh, 937 So.2d 716 (Fla. 5th DCA 2006) . . . . . . . . . . . 5 Cheverie v. Cheverie, 898 So.2d 1028 (Fla. 5th DCA 2005). . . . . . . . 6 Coates v. City of Cincinnati, 402 U.S. 611 (1971). . . . . . . . . . . . . . . 1-2 Davis v. Dieujuste, 496 So.2d 806 (Fla. 1986) . . . . . . . . . . . . . . . . . . 7 Encarnacion v. Encarnacion, 877 So.2d 960 (Fla. 5th DCA 2004). . 7 Florida Bar v. Brown, 790 So.2d 1081 (Fla. 2001). . . . . . . . . . . . . . . 13 Florida Bar v. Buckle, 771 So.2d 1131 (Fla. 2000). . . . . . . . . . . . . . . 13 Florida Bar v. Carson, 737 So.2d 1069 (Fla. 1999). . . . . . . . . . . . . . 12

Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000). . . . . . . . . . . . . . 3-4 Florida Bar v. Head, 27 So.3d 1 (Fla. 2010). . . . . . . . . . . . . . . . . . . . 11-12 Florida Bar v. Kassier, 730 So.2d 1275 (Fla. 1998). . . . . . . . . . . . . . 12-13 Florida Bar v. Machin, 635 So.2d 938 (Fla. 1994). . . . . . . . . . . . . . . 13 Florida Bar v. Mogil, 763 So.2d 303 (Fla. 2000). . . . . . . . . . . . . . . . 3 Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006) . . . . . . . . . . . . . . 13 Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001) . . . . . . . . . . . . . . . . . 4-5 Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007) . . . . . . . . . . . . . 10 Florida Bar v. Wasserman, 675 So.2d 103 (Fla. 1996). . . . . . . . . . . . 3 Florida Bar v. Wooten, 452 So.2d 547 (Fla. 1984). . . . . . . . . . . . . . . 10 Garrison v. Louisiana, 379 U.S. 64 (1964). . . . . . . . . . . . . . . . . . . . . 4 Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001). . . . . . . . . . . . . 8 Klinka v. Klinka, 959 So.2d 383 (Fla. 5th DCA 2007). . . . . . . . . . . . 8 Knorr v. Knorr, 751 So.2d 64 (Fla. 2d DCA 1999) . . . . . . . . . . . . . . 6 Larson v. Lesser, 106 So.2d 188 (Fla. 1958) . . . . . . . . . . . . . . . . . . . 11 Rosen v. Rosen, 696 So.2d 697 (Fla. 1997). . . . . . . . . . . . . . . . . . . . . 5 Spano v. Spano, 692 So.2d 324 (Fla. 4th DCA 1997) . . . . . . . . . . . . 7 State Plant Bd. v Smith, 110 So.2d 401 (Fla. 1959) . . . . . . . . . . . . . 11 Tomayko v. Thomas, 143 So.2d 227 (Fla. 3d DCA 1962) . . . . . . . . . 11 U.S. v. Calderon, 127 F.3d 1314 (C.A. 11 (Fla.) 1997) . . . . . . . . . . . 2 Viera v. Viera, 698 So.2d 1308 (Fla. 5th DCA 1997) . . . . . . . . . . . . . 5

Wade v. Hirschman, 903 So.2d 928 (FL 2005). . . . . . . . . . . . . . . . . . 5-6, 8 Wilson v. Armstrong, 686 So.2d 647 (Fla. 1st DCA 1996) . . . . . . . . . 8

Statutes and Other Authorities U.S. Const. Amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 14 U.S. Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 U.S. Const. Amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14 Art. I, § 4, Fla. Const (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 14 Art. I, § 9, Fla. Const (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,14 Art. I, § 10, Fla. Const (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14 § 57.105, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 61.075, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8 § 61.08, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 § 61.13, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8 § 61.13(2)(c), Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 61.13(3), Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 61.16, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 61.30, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8-9 § 768.79, Fla. Stat. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fla. Fam. L. R. P. 12.285(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fla. Fam. L. R. P. 12.380. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fla. Fam. L. R. P. 12.490. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8 Fla. Fam. L. R. P. 12.490(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fla. Fam. L. R. P. 12.615. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 Fla. R. App. P. 9.210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fla. R. Civ. P. 1.380. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fla. R. Civ. P. 1.442. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fla. R. Civ. P. 1.525. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fla. R. Civ. P. 1.540. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fla. R. Crim. P. 3.830 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7 Fla. R. Crim. P. 3.840 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7 Fla. R. Crim. P. 3.986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7 Fla. Stds. Imposing Law. Sancs. IIIA . . . . . . . . . . . . . . . . . . . . . . . . . 9 R. Regulating Fla. Bar 3-7.6(m)(1)E. . . . . . . . . . . . . . . . . . . . . . . . . . 12 R. Regulating Fla. Bar 3-7.6(q)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 R. Regulating Fla. Bar 4-1.8(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim R. Regulating Fla. Bar 4-8.4(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Argument and Rebuttal

Issue I Rules 4-8.4(d) and 4-1.8(e) are unconstitutional. The bar's arguments that rules 4-8.4(d) and 4-1.8(e) are constitutional and

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the case can be resolved without adjudicating constitutional issues are without

merit and contradictory to the evidence. The very essence of rule 4-8.4(d), as

applied in the case herein, is the limitation of Respondent's First Amendment and

Article 1, § 4 rights to speech even if the statements are true and objectively

reasonable. The bar's position that Board of Airport Commissioners of City of Los

Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), Bridges v. State of California,

314 U.S. 252 (1941), and Coates v. City of Cincinnati, 402 U.S. 611 (1971) are not

applicable as they were not in reference to statements made by an attorney in a

document filed with the court, which is a public document, misses the scope of the

holdings which are distilled down to the following derived from Respondent's

Supporting Brief at 9-10 (internal citations omitted): "A vague and overbroad rule

that prevents criticism of the judiciary unjustly stifles an attorney’s First

Amendment rights. A rule that is substantially overbroad and not fairly subject to

a limiting construction is facially invalid and violates the First Amendment. A rule

is overbroad when it authorizes the punishment of constitutionally protected

speech. A rule is unconstitutionally vague when it subjects the exercise of a right

to an unascertainable standard." Rule 4-8.4(d), like the ordinance in Coates, is

vague and enforceable through arbitrary and subjective means anytime and

everywhere anyone can say that he or she felt disparaged, humiliated, or

discriminated against.

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The bar's allegation that rule 4-8.4(d) is clear and easily understandable to a

reasonable attorney is directly contradicted by the evidence of the vagueness and

unconstitutionality of the rule as five (5) different members of the Florida Bar gave

five (5) different interpretations of the limitation of a bar member's First

Amendment and Article 1, § 4 rights to criticize the judiciary. (T-62, 283-284,

478, 512-513, 521-522). The aforementioned demonstrates that men and women

of common intelligence must necessarily guess at the rule’s meaning.

The bar's argument that the referee used the proper knowingly prong

demonstrates that it has failed to discern the difference and import between a mens

rea, as is required by rule 4-8.4(d), and an actus reus as found by the referee. The

actus reus is not synonymous with or the same as mens rea. “Knowingly” must be

proven by a demonstration of specific intent or mens rea. See U.S. v. Calderon,

127 F.3d 1314, 1326 (C.A. 11 (Fla.) 1997). The bar never proved, and the referee

never found, that Respondent had the requisite mens rea to violate rule 4-8.4(d)

and Respondent should not be disciplined absent clear and convincing proof of

mens rea. It should be noted that the only evidence given on Respondent's mens

rea was to improve the legal system. (T-504-505).

The bar's reliance on Florida Bar v. Wasserman, 675 So.2d 103 (Fla. 1996)

(profane comments to judicial assistant) and Florida Bar v. Mogil, 763 So.2d 303

(Fla. 2000) (dishonesty in judicial removal proceedings) is misplaced and

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inapplicable as neither case revolved around truthful and objectively reasonable

statements as is the nature of the case sub judice.

The bar's statement that rule 4-8.4(d) "clearly delineates the persons" whose

sensitivities must be harmed by the disparaging, humiliating, or discriminatory

language or acts "as being litigants, jurors, witnesses, court personnel, or other

lawyers" (Answer brief at 11) is inaccurate as a matter of fact as the rule

specifically states:

A lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic. It is clear that the rule does not state whose sensitivities must be harmed or whether

the truth is a defense to the claimed sensitivity.

The bar has also misconstrued or misconceived Florida Bar v. Frederick,

756 So.2d 79 (Fla. 2000) in stating that the holding is the equivalent of rule 4-

8.4(d) prohibiting "language that is disparaging, even if it is true." (Answer brief

at 12.) Frederick had nothing to do with truthful utterances in a court proceeding;

rather, the case revolved around Frederick's clients being required to sign a release

prior to receiving funds and that the clients would "not contact the Florida Bar with

any complaints concerning him, or if they had already done so, that they would

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withdraw same." See Florida Bar v. Frederick, 756 So.2d 79, 86 (Fla. 2000).

Respondent is unable to ascertain the bar's leap from an improper contract that

precludes contacting the bar to rule 4-8.4(d) prohibiting "language that is

disparaging, even if it is true." The bar has not presented a single case that

supports its position that rule 4-8.4(d) precludes truthful language that could be

perceived as disparaging, humiliating, or discriminatory.

The bar also misconstrues and misconceives the holding of Garrison v.

Louisiana, 379 U.S. 64 (1964) that "Truth may not be the subject of either civil or

criminal sanctions where discussion of public affairs is concerned." The scope of

the holding extends to a document in a court file, which is a public document,

where a legal analysis of the failures of the judiciary is appropriate and where

public affairs is concerned. The bar has demonstrated the problem with rule 4-

8.4(d) as it continues to arbitrarily malign the legal analyses as derogatory,

disparaging, and unprofessional although the analyses are truthful and based on an

objectively reasonable basis as described in Florida Bar v. Ray, 797 So.2d 556

(Fla. 2001). It should be noted that the bar did not mention Ray a single time in its

Answer brief although bar counsel specifically stated that the objectively

reasonable holding of Ray applied. (R-25). The only reason for not mentioning

the Ray standard is that same would mean that Respondent would not be subject to

discipline pursuant to rule 4-8.4(d). Respondent's legal analyses and statements

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were objectively reasonable considering his knowledge, experience, familiarity

with the judge and magistrate's rulings and recommendations. A synopsis of just a

few of judge Bronson and magistrate Hinds' rulings and recommendations that

Respondent considered as part of his basis in his legal analyses are listed below;

however, it must be noted that Respondent was precluded from demonstrating his

complete knowledge of the magistrate and judge.

Judge Bronson Case: DaSilva v. DaSilva, 2003-DR-008576 Pages: (RC1-34-35) ~ Issues: Fla. Fam. L. R. P. 12.615, Chetram v. Singh, 937 So.2d 716, 719 (Fla. 5th DCA 2006), Carbonell v. Dept. of Revenue, 30 So.3d 664, 664 (Fla. 5th DCA 2010): Failed to state which order was violated, no findings of present ability to comply and/or pay. Failed to include a purge. Pages: (RC1-45-47) ~ Issues: Fla. Fam. L. R. P. 12.615, Carbonell: Did not identify child support order and amount. Failed to state and demonstrate present ability to comply and/or pay. Failed to include findings on ability to pay purge. No findings for lodestar. Pages: (RC1-34-35) ~ Issues: § 57.105, § 61.16, Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997), Viera v. Viera, 698 So.2d 1308, 1309 (Fla. 5th DCA 1997): Failed to analyze need and ability to pay based on parties’ incomes and assets and lodestar. Failed to state why motion was lacking in merit. Pages: (RC1-36-44) ~ Issues: § 61.13(3), § 61.13(2)(c), Wade v. Hirschman, 903 So.2d 928 (FL 2005): No finding of substantial, material, change in circumstances. No analysis of best interest factors. Pages: (RC1-36-44) ~ Issues: § 61.30, Armour v. McMiller, 15 So.3d 923, 925 (Fla. 5th DCA 2009), Cheverie v. Cheverie, 898 So.2d 1028, 1029 (Fla. 5th DCA 2005): No child support guidelines worksheet. No findings for Mother’s income, deductions, filing status, or credits. No findings for Father’s deductions, filing status, or credits. Orders support to be taken out of estate and binds personal representative without statutory basis.

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Page: (RC1-43) ~ Issues: Fla. Fam. L. R. P. 12.285(f), Fla. Fam. L. R. P. 12.380, Fla. R. Civ. P. 1.380, Fla. R. Civ. P. 1.442, Fla. R. Civ. P. 1.525, § 768.79: Awarded fees and costs at the time of entry without findings on the terms of the proposal for settlement, that proposal was introduced, or the filing of a motion for attorney’s fees pursuant to Fla. R. Civ. P. 1.442 or §768.79. No findings for lodestar, affidavit of attorneys fees, or that there was an attempt to resolve without court intervention. Case: Davis v. Perkins, 2005-DR-016242 Pages: (RC1-58-59) ~ Issues: Fla. Fam. L. R. P. 12.490, Knorr v. Knorr, 751 So.2d 64, 65-66 (Fla. 2d DCA 1999): Denied exceptions without a hearing. Pages: (RC1-52-55, 58-59) ~ Issue: § 61.30: Failed to include parties’ incomes, deductions, filing status, or credits. Arrearage calculation missing. Failed to address or award retroactive relief of child support. Pages: (RC1-52-55, 58-59) ~ Issues: § 61.13, Wade v. Hirschman: Failed to analyze factors for determining best interests of children. No finding of substantial, material, change in circumstances. Case: Jensen v. Jensen, 2008-DR-016362 Pages: (RC1-115-119) ~ Issues: Fla. R. Civ. P. 1.380, Fla. Fam. L. R. P. 12.380: No findings for lodestar, affidavit of time, or that there was a good faith attempt to resolve without court intervention. Pages: (RC1-128-131) ~ Issues: Fla. R. Crim. P. 3.830 or 3.840 or 3.986, Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985): No finding of present ability to comply or purge provision. Failed to advise of rights or allow opportunity to present mitigating factors. Case: Okonkwo v. Okonkwo, 2009-DR-018992 Pages: (RC1-316-331) ~ Issues: Fla. R. Crim. P. 3.830 or 3.840 or 3.986: No finding of present ability to comply or purge provision. Failed to advise of rights or allow opportunity to present mitigating factors. Case: Williams v. Williams, 2002-DR-017185 Pages: (RC1-349-350) ~ Issues: § 61.075, Fla. Fam. L. R. P. 12.615, Carbonell: Held Williams in willful contempt although he was absent without finding of present ability to comply or purge provision. Failed to advise of rights or allow opportunity to present mitigating factors. Judge stated that he was operating

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under Fla. R. Civ. P. but could not remember which rule. Pages: (RC1-361-362) ~ Issues: § 61.075, Fla. Fam. L. R. P. 12.615, Carbonell: No finding of present ability to comply or purge provision. Failed to advise of rights or allow opportunity to present mitigating factors. Judge stated that he was operating under Fla. R. Civ. P., but he could not remember which rule. Pages: (RC1-361-362) ~ Issue: Attorney’s Fees: No findings for lodestar, affidavit of time, or finding that there was an attempt to resolve without court intervention. Pages: (RC1-361-362) ~ Issues: § 61.075, Davis v. Dieujuste, 496 So.2d 806, 809-810 (Fla. 1986), Encarnacion v. Encarnacion, 877 So.2d 960, 963-964 (Fla. 5th DCA 2004), Spano v. Spano, 692 So.2d 324, 327 (Fla. 4th DCA 1997): Redistributed previously distributed item in Final Judgment. Judge was unable to state basis of authority. Pages: (T-273, 275) ~ Issues: Extraordinary writs, common law jurisdiction: Judge Bronson stated that if he were served with a petition for writ of habeas corpus, the movant would have to set a hearing to have the petition heard.

Magistrate Hinds Case: Bachorik v. Bachorik, 2008-DR-014277 Pages: (RC1-17-19) ~ Issues: Fla. Fam. L. R. P. 12.490, § 61.13, Causin v. Leal, 881 So.2d 20, 22 (Fla. 4th DCA 2004): Wife did not appear because she was incarcerated but magistrate proceeded and decided child custody without mother’s input. Failed to analyze factors for determining best interests of the minor child. Pages: (RC1-17-19) ~ Issues: § 61.075, Barabas v. Barabas, 923 So.2d 588, 590 (Fla. 5th DCA 2006): Failed to equitably distribute property pursuant to statute. No basis given for unequal distribution. Pages: (RC1-17-19) ~ Issues: Fla. Fam. L. R. P. 12.490, § 61.08, Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), Hill v. Hooten, 776 So.2d 1004, 1006 (Fla. 5th DCA 2001): No findings of need versus ability to pay analysis as required by statute and caselaw. Mandatory § 61.08 factors were not listed. Magistrate stated that she only had to consider the factors and not list them in the findings. (T-87) Case: Bachorik v. Bachorik, 2009-DR-003894 Injunction Case Pages: (RC1-17-19) ~ Issues: Fla. Fam. L. R. P. 12.490(3), Klinka v. Klinka, 959 So.2d 383, 385 (Fla. 5th DCA 2007): Due process violated as case was not

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referred to magistrate, but she ruled on the matter without notice to wife. Pages: (RC1-24-25) ~ Issue: Fla. R. Civ. P. 1.540: Abuse of discretion not to set aside final judgment pursuant to Fla. R. Civ. P. 1.540 when absence from hearing on final judgment is not willful. See Armstrong v. Pazarino, 812 So.2d 512, 513 (Fla. 4th DCA 2002): Magistrate stated that the Final Judgment could not and should not be set aside since the time for appeal had lapsed. Case: Crespo v. Garcia, 2008-DR-001990 Pages: (RC1-28-33) ~ Issue: § 61.13: Failed to analyze § 61.13 factors for determining best interests of children. Pages: (RC1-28-33) ~ Issues: § 61.08, Canakaris, Hill v. Hooten: No analysis of need and ability to pay based on incomes. Mandatory factors not listed. Pages: (RC1-28-33) ~ Issues: § 61.30, Armour: Failed to include parties’ incomes, deductions, filing status, or credits. Case: Davis v. Perkins, 2005-DR-016242 Pages: (RC1-52-55) ~ Issues: Fla. Fam. L. R. P. 12.490, Wilson v. Armstrong, 686 So.2d 647, 648-649 (Fla. 1st DCA 1996): Interviewed children ex parte. Pages: (RC1-52-55, 58-59) ~ Issues: § 61.13, Wade v. Hirschman: Failed to analyze factors for determining best interests of children. No finding of substantial, material, change in circumstances. Pages: (RC1-52-55, 58-59) ~ Issues: § 61.30, Armour: Failed to calculate child support pursuant to statute or include parties’ incomes, deductions, filing status, or credits, or address the requested retroactive child support. A review of the analyses above, the testimony provided by judge Bronson

and magistrate Hinds in the transcript, and the analyses of the Matthew matter in

the Supporting Brief and record demonstrate that judge Bronson and magistrate

Hinds: (1) failed to understand relevant legal doctrines or procedures and caused

injury or potential injury to a client (the public/party); or (2) committed negligence

in determining whether the he/she is competent to handle a legal matter and caused

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injury or potential injury to a client (the public/party). The aforementioned, but for

the fact that they are members of the judiciary, would subject them to at least a

public reprimand pursuant to Fla. Stds. Imposing Law. Sancs. IIIA, 4.53.

The bar has argued that rule 4-1.8(e) is constitutional although it lacks a

specific definition of "costs and expenses of litigation;" however, the bar's

argument is not supported by any caselaw or list(s) as none exists in the rule. The

bar has also misconstrued the facts of the case as Respondent used the funds that

he received from the father as intended and only later learned, at the time of the

hearing sub judice, that the father had considered the funds as a retainer to be used

as Respondent saw fit and that the amount that was held back, the $3,000.00, could

be claimed against. The bar has failed to prove any willfulness or intent as the

advanced funds were simply recovered from the $3,000.00.

The bar's arguments that an attorney's right to contract is not unreasonably

restricted by a lack of clarity of the limitations on an attorney's contract with a third

party for payment of a party's expenses directly conflicts with its argument that

payment of a purge amount is not an authorized reasonable expense of litigation as

there is no rule, statute, or caselaw that precludes parties from defining the

reasonable expenses of litigation. The bar's reliance on Florida Bar v. Wooten,

452 So.2d 547 (Fla. 1984) is misplaced and militates against disciplining

Respondent as the key issue in applying the rule is a determination of whether an

attorney acquires an interest in his client's litigation. See Florida Bar v. Wooten,

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452 So.2d 547, 547-548 (Fla. 1984). In Wooten, the attorney paid for his client's

medical bills, maintenance, and support of the client’s family to be paid from the

proceeds of any recovery. See id. The attorney was subsequently discharged and

made no effort to recover the money. See id. He was found to have violated the

rule against giving a client financial assistance and gaining a financial interest. See

id. The facts of this case are clearly distinguishable from Wooten as Respondent

has not acquired an interest in Jensen’s case, the bar never argued that an interest

was acquired, and the referee never found that Respondent acquired an interest in

his client's litigation; rather, the bar's argument and the referee's finding were that

the purge was not court costs or expenses of litigation.

The bar's reliance on Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007)

demonstrates that it has missed the essence of Respondent's Supporting Brief as

there is not an argument against the notion that the freedom to contract may be

duly limited in the interest of public welfare, but the word "duly" support's

Respondent's position that the limitation must be done in a manner in accord with

the legal requirements and protections afforded by the Fifth and Fourteenth

Amendments, Article I, § 9 and § 10, and Larson v. Lesser, 106 So.2d 188, 191-

192 (Fla. 1958) whereby the limitations are not vague or subject to arbitrary and

capricious application -- rule 4-1.8(e) fails the aforementioned standards as more

fully explained in Respondent's Supporting Brief at 7-24 and 59-64.

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Issue II Respondent’s due process rights were violated. The bar has alleged that Respondent's due process rights were not violated

because he was afforded the opportunity to be heard pursuant to Florida Bar v.

Head, 27 So.3d 1 (2010); however, Respondent's opportunity was not full, fair, and

not illusory in nature as required by State Plant Bd. v Smith, 110 So.2d 401, 407

(Fla. 1959) and Tomayko v. Thomas, 143 So.2d 227, 230 (Fla. 3d DCA 1962).

Respondent was further denied due process when he was not afforded a chance to

fully present his defenses. See Tomayko at 230. The bar's argument that the truth

is not a defense was not stated by the referee at any time during the hearing or in

the Report and is therefore just the bar's opinion that is not supported by rule,

statute, or caselaw.

The bar's allegation that Respondent's due process rights were not violated

because it "routinely files its request for costs after the final hearing and before the

report of referee is issued so that any costs may be included in the report when it is

filed as required by R. Regulating Fla. Bar 3-7.6(m)(1)(E)" (Answer brief at 20)

demonstrates that it and the referee(s) have routinely violated respondents' due

process rights as final judgments have been entered against them without the

opportunity to be heard and defend against same as forbidden by Cavalier v. Ignas,

290 So.2d 20, 21-22 (Fla. 1974).

The bar is also unable to defend against the violation of Respondent's due

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process rights by saying that he could have filed his "objections to the bar's costs

before the Referee signed it." The bar is effectively saying that Respondent's due

process rights were not violated because he could have objected to the costs within

eight (8) days, although the referee signed the Report within seven (7) days of

receipt, and the rule clearly allows ten (10) days to object. Respondent's due

process rights were violated pursuant to the plain language of rule 3-7.6(q)(5)

which states that he had ten (10) days to object. The bar's arguments and reliance

on Florida Bar v. Carson, 737 So.2d 1069 (Fla. 1999), Head, and Florida Bar v.

Kassier, 730 So.2d 1275 (Fla. 1998) that a referee has the authority to award costs

are irrelevant and inapplicable as Respondent never argued that the referee did not

have the authority, but that the award of costs must comply with due process. The

bar's reliance on Carson and Kassier is misplaced as these cases further support

Respondent’s argument that there should not be an award of costs in the case sub

judice as the bar's Amended Request for Payment of Costs and Amended

Statement of Costs were not properly authenticated with an affidavit signed under

oath. See Carson at 1073 and Kassier at 1276. The bar has obviously conceded

that the other procedural due process violations committed by the referee and

addressed in Respondent's Supporting Brief are indefensible as it has presented no

defenses or arguments against same.

Issue III

An affidavit that is drafted for a party becomes solely the signing party's words.

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The bar has missed the point of drafting an affidavit or verified motion -- to

accurately reflect what the affiant desires whether it is liked or disliked by the

drafting attorney, public, opposing counsel, or judicial system. The bar's reliance

on Florida Bar v. Machin, 635 So.2d 938 (Fla. 1994) (trying to buy a victim's

silence), Florida Bar v. Brown, 790 So.2d 1081 (Fla. 2001) (solicitation and not

acting in client's best interests), Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006)

(outbursts in an attempt to obtain a mistrial), and Florida Bar v. Buckle, 771 So.2d

1131 (Fla. 2000) (harassing, embarrassing, and intimidating a witness) are not

applicable as they do not refer to or have anything to do with an affidavit or

verified motion that accurately reflected the client's intent. The ownership of a

document drafted by one party to reflect the signing party's intent is so basic in law

that even the bar should understand and accept same since it has argued the exact

same principle when it stated "The proposed report prepared by the bar reflected

the Referee's findings. . . . Once the Referee adopted the proposed report, it

became his Report of Referee" (Answer brief at 19) -- so too is the case for an

affidavit or verified motion that is drafted by an attorney and signed by a party.

Conclusion

The Report should be vacated and the charges against Respondent should be

dismissed as: (1) Rule 4-8.4(d) is unconstitutional pursuant to the First and

Fourteenth Amendments and Article I, § 4 because it infringes on the freedom of

15

speech as it is vague, subject to multiple interpretations, subject to arbitrary and

capricious enforcement, and fails to have a safe harbor provision for the truth; (2)

Respondent’s statements are not subject to discipline pursuant to rule 4-8.4(d) as

they are bottomed on an objectively reasonable basis and there was no evidence

presented that Respondent had the requisite mens rea to violate the knowingly

prong of the rule; (3) Rule 4-1.8(e) is unconstitutionally vague and unreasonably

limits an attorney’s right to contract with third parties in violation of Article I,

§ 10; (4) Respondent’s Fourteenth Amendment and Article I, § 9 due process

rights were violated when he was precluded from presenting his case and defenses

in a meaningful fashion and costs were taxed against him without the opportunity

to be heard; (5) the verified pleading was not Respondent’s; (6) the referee failed

to exercise and demonstrate impartiality and independence in the verbatim entry of

the proposed report; and (7) the referee violated Respondent's due process rights

when he failed to comply with the mandatory procedural rules in submitting the

report and taxing the bar's unauthenticated costs.

WHEREFORE, Carlton Pierce, requests this Court to Vacate the Report, recommended discipline, and taxation of costs, and dismiss all charges.

Certificate of Service I certify that a copy hereof has been furnished to Keshara D. Davis, Esquire, 1000 Legion Place, Suite 1625, Orlando, FL 32801-5200 by U.S. mail on January 26, 2012.

Certificate of Compliance I certify that this brief is computer-generated in Times New Roman 14-point font

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and complies with Fla. R. App. P. 9.210. Carlton Pierce, Esquire Carlton Pierce, P.A. P.O. Box 223723

West Palm Beach, FL 33422-3723 Ofc.: (407) 345-5258 Fax: (407) 536-4333 E-mail: c_pierce1@hotmail.com FBN: 0610879