Supreme Court of Florida

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No. SC13-2067

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THE FLORIDA BAR,

Complainant,

vs.

ERWIN ROSENBERG,

Respondent.

[May 28, 2015]

PER CURIAM.

We have for review a referee’s report recommending that Respondent Erwin 

Rosenberg be found guilty of professional misconduct in violation of the Rules 

Regulating the Florida Bar (Bar Rules), and suspended from the practice of law for 

ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed 

in this opinion, we approve the referee’s findings of fact and recommendations as 

to guilt. We disapprove the referee’s recommended sanction, and conclude instead 

that a one-year suspension is appropriate.

FACTS
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In October 2013, The Florida Bar (Bar) filed a complaint against 

Respondent Rosenberg, alleging that he engaged in misconduct in violation of the 

Bar Rules. A referee was appointed to consider the matter. In the proceedings 

before the referee, Rosenberg filed a Motion for Summary Judgment. The Bar 

filed a response in opposition to Rosenberg’s motion, as well as a cross-motion for 

summary judgment. After considering these filings, the referee entered an “Order 

Denying Respondent’s Motion for Summary Judgment and Granting 

Complainant’s Cross-Motion for Summary Judgment.” In the order, the referee 

found that the facts as alleged by the Bar were undisputed, that Rosenberg failed to 

present any evidence to show material facts in dispute, and that Rosenberg’s legal 

arguments were without merit. The referee has submitted his report for the Court’s 

review (based on his order granting summary judgment), in which he made the 

following findings and recommendations.

In 2006, Rosenberg was hired to represent several businesses (the clients)

that were being sued in the circuit court in Miami-Dade County for breach of 

contract; he entered appearances on behalf of the clients in March and April 2006. 

Prior to Rosenberg’s appearance in the case, in December 2005, counsel for the 

plaintiffs had served on the clients a request for production, requesting that they 

produce a number of documents. When the clients did not comply, on March 1, 

2006, the circuit court judge entered an order granting the plaintiffs’ motion to 
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compel production and ordering the clients to produce the requested documents 

within twenty days. The clients also did not comply with this order. The plaintiffs 

then filed a motion for contempt and sanctions. In April 2006, the circuit court 

judge granted the motion as to sanctions but denied the motion as to contempt, and 

ordered the clients to produce the documents within five days.

In September 2006, the case against the clients was transferred to the circuit 

court in Palm Beach County, before Judge Jonathan Gerber. At that time, the 

clients still had not complied with the plaintiffs’ December 2005 request for 

production. In March 2007, the plaintiffs filed a motion to compel production, for 

contempt, and for sanctions. Judge Gerber held a hearing on the motion in April 

2007. Rosenberg appeared at the hearing and objected to the plaintiffs’ request for 

production on the grounds that the documents sought were not reasonably 

calculated to lead to admissible evidence. Judge Gerber overruled the objection, 

granted the plaintiffs’ motion to compel, and ordered the clients to produce the 

requested documents within fifteen days. Thereafter, on May 2, 2007, Rosenberg 

filed a motion for rehearing, a motion for a protective order, a request for an in 

camera inspection, and a stay for appellate certiorari review. In these motions, 

Rosenberg asserted that the documents sought by the plaintiffs contained trade 

secrets or confidential business information, and that disclosure of the documents 

would harm his clients. On May 29, Judge Gerber held a hearing; the judge 
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ultimately denied the motions and overruled Rosenberg’s trade secrets and 

confidentiality objections. Judge Gerber held that, because Rosenberg had not 

raised these arguments in the more than one year that he represented the clients, the 

objections were waived.

In June 2007, the plaintiffs filed what was their fifth motion to compel 

production of documents, as well as a motion for contempt and sanctions. Judge 

Gerber held a hearing on this motion. At the hearing, Rosenberg maintained that 

he had produced some documents partially responsive to the plaintiffs’ request, 

and that he had provided all of the documents given to him by the clients. In 

response, the plaintiffs argued that the documents were duplicates of ones already 

produced, that the documents were not provided in any particular order, and that 

Rosenberg had not served a written response to the request to produce, as required 

by Florida Rule of Civil Procedure 1.350. Judge Gerber granted the plaintiffs’

motion and ordered Rosenberg and the clients to produce the requested documents 

within eight days; the judge also granted the plaintiffs’ request for sanctions and 

warned Rosenberg and the clients that if they did not comply, he would consider 

striking their pleadings.

After the circuit court issued its order, Rosenberg filed a written response to 

the plaintiffs’ request for production on June 28, 2007. In the response, Rosenberg 

again objected to production on the grounds that the plaintiffs’ requests were
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overbroad and burdensome, and that the documents requested would violate his 

clients’ trade secret and business confidentiality privileges. The plaintiffs then 

filed their sixth motion to compel, for contempt, and sanctions. On July 24, 2007, 

Judge Gerber held a hearing and granted the motion. The judge further ordered 

that an evidentiary hearing be held on an order to show cause why Rosenberg 

should not be sanctioned for bad faith conduct.

Rosenberg withdrew as counsel for the clients on July 30, 2007. On August 

7, 2007, the circuit court entered an order setting a hearing on the show cause order 

for August 24. Rosenberg filed a motion to dismiss the order to show cause, 

alleging that the court failed to provide sufficient notice or opportunity to be heard; 

Judge Gerber denied this motion.

At the show cause hearing on August 24, 2007, Rosenberg declined to 

testify on his own behalf. He was, however, called as an adverse witness by 

counsel for the plaintiffs. Following the hearing, on September 14, 2007, Judge 

Gerber entered a written “Order Imposing Attorney’s Fees for Bad Faith Conduct.” 

In this order, Judge Gerber found that Rosenberg acted in bad faith:

The most egregious bad faith action which Mr. Rosenberg committed 

was re-stating in his June 28 written response the same objections 

which this Court already had overruled, without Mr. Rosenberg taking 

any further action to comply with Plaintiffs’ requests for production or 

with this Court’s orders. Mr. Rosenberg’s explanation that he 

interpreted rule 1.350 as saying that he merely should repeat the 

overruled objections “as a zealous advocate” . . . simply defies 

common sense. Such flouting of this Court’s orders is the very 
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definition of bad faith conduct. This Court finds Mr. Rosenberg to be 

an intelligent person, and this Court does not believe that the gravity 

of his repeated misconduct can be accepted as merely an error in 

judgment or ignorance of the rules.

Accordingly, Judge Gerber held that the plaintiffs were entitled to recover from 

Rosenberg their attorney’s fees relating to all motions to compel filed after 

Rosenberg entered his appearance in the case. The Fourth District Court of Appeal 

affirmed the circuit court’s order in January 2009. See Rosenberg v. Gaballa, 1 So. 

3d 1149 (Fla. 4th DCA 2009). The referee in this case found that Rosenberg still 

has not paid any portion of the attorney’s fee award.

Based on these facts, the referee recommends that Rosenberg be found in 

violation of the following Bar Rules: 4-1.1 (a lawyer shall provide competent 

representation to a client); 4-3.4(d) (a lawyer must not in pretrial procedure, make 

a frivolous discovery request or intentionally fail to comply with a legally proper 

discovery request by an opposing party); and 4-8.4(d) (a lawyer shall not engage in 

conduct in connection with the practice of law that is prejudicial to the 

administration of justice).

The referee found four aggravating factors in this case: Rosenberg engaged 

in multiple offenses, and multiple instances of the same offense; he has refused to 

acknowledge the wrongful nature of his misconduct; he has substantial experience 

in the practice of law; and he has failed to pay any portion of the attorney’s fee 

award imposed against him. The referee also considered two mitigating factors: 
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Rosenberg has no prior disciplinary history; and he has already received a 

monetary sanction imposed by the circuit court for his bad faith conduct.

In making a recommendation as to the sanction, the referee noted:

The Referee has strong doubts about the Respondent’s fitness to 

practice law. It is obvious Respondent possesses above-average 

intelligence. It appears, however, that he lacks either the common 

sense or the intellectual honesty to distinguish appropriate and rational 

arguments from inappropriate and irrational arguments. The ability to 

read precedent, while a necessary condition for practicing law, is not 

sufficient. A lawyer must be able to apply legal principles correctly 

and honestly. There are times when a lawyer must yield to the facts, 

precedent, or court orders. Respondent appears incapable of 

discerning when to yield a legally unsupportable position.

Although the report indicates the referee believed a lengthier suspension was 

warranted, based on the Florida Standards for Imposing Lawyer Sanctions and case 

law he recommends that Rosenberg be suspended from the practice of law for 

ninety-one days. Additionally, the referee recommends that Rosenberg not be 

reinstated to practice until he can demonstrate rehabilitation by addressing 

“whatever underlying psychological or emotional issues may exist which appear to 

interfere with his ability to objectively evaluate facts, precedents, and court 

orders,” and until he has paid the sanctions imposed in Judge Gerber’s September 

2007 order.
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Before this Court, Rosenberg seeks review of the referee’s order granting 

summary judgment in favor of the Bar,1as well as the referee’s findings of fact and 

recommendations as to guilt. The Bar has filed a cross-notice of review, 

challenging the referee’s recommended sanction. The Bar urges the Court to 

disapprove the referee’s recommendation for a ninety-one day suspension and 

instead suspend Rosenberg from the practice of law for one year.

ANALYSIS

We first address Rosenberg’s argument that the referee improperly granted 

the Bar’s motion for summary judgment. The referee in a disciplinary case has 

authority to enter summary judgment on the same basis as in a civil case—when, 

as a matter of law, it is apparent from the pleadings and other evidence that there 

are no genuine issues of material fact and the moving party is entitled to relief as a 

matter of law. See Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006); Fla. Bar 

v. Daniel, 626 So. 2d 178, 182 (Fla. 1993). On review of a referee’s report based 

on a summary judgment, the standard of review is de novo, with all facts and 

inferences viewed in favor of the party against whom the summary judgment has 

 

1. Rosenberg also challenges the referee’s April 4, 2014, “Order Denying 

Respondent’s Motion for Rehearing.” In that order, the referee denied 

Rosenberg’s motion for rehearing of an order denying his third motion for 

disqualification. We have fully considered Rosenberg’s arguments as to this issue, 

and we approve the referee’s order on rehearing without further discussion.
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been entered. See Fla. Bar v. Cosnow, 797 So. 2d 1255, 1258 (Fla. 2001). The 

party seeking review must point to some disputed issue of fact material to the 

referee’s conclusions. Id.

In this case, the referee’s order granting summary judgment, and the findings 

of fact contained in the Report of Referee, are largely based on Judge Gerber’s 

September 2007 Order Imposing Attorney’s Fees for Bad Faith Conduct. This 

Court has held that the referee in a disciplinary proceeding may consider 

judgments entered in other tribunals, and may properly rely on such judgments to 

support his or her findings of fact. See Fla. Bar v. Gwynn, 94 So. 3d 425, 430 (Fla. 

2012). Here, the facts are essentially undisputed. Counsel for the plaintiffs filed a 

request for production in December 2005. In the more than a year that passed 

between Rosenberg’s appearance in the case in March and April 2006, and when

he withdrew as counsel for the clients in July 2007, Rosenberg did not fully 

comply with the plaintiffs’ requests. He also did not comply with the several

circuit court orders directing him (and the clients) to produce the documents 

requested. Ultimately, in September 2007, Judge Gerber entered an order 

sanctioning Rosenberg for bad faith conduct, and ordered him to pay the plaintiffs’ 

attorney’s fees. To date, Rosenberg has not complied with this order.

Rosenberg does not dispute that these events occurred. Rather, he contends 

that the referee erred in granting the Bar’s motion for summary judgment because 
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the referee failed to consider other material facts in dispute. He asserts that the 

orders to compel production entered in the circuit court in Miami-Dade County 

were non-final because the judge in that circuit never ruled on Rosenberg’s motion 

for rehearing and, moreover, that those orders were unenforceable because MiamiDade County was not the proper venue for the breach of contract action. 

Rosenberg also maintains that the clients produced some of the documents 

requested by the plaintiffs, and they timely objected to producing other documents 

on the grounds that the information sought was not reasonably calculated to lead to 

the discovery of admissible evidence; when Judge Gerber overruled these “scope 

of discovery” objections, Rosenberg argues that he then properly raised an 

objection based on trade secret and business confidentiality privileges. We note 

that Rosenberg has not cited any legal authority for his assertion that the MiamiDade judge’s orders to compel were unenforceable after the case was transferred to 

Palm Beach County. 

But in any event, Rosenberg’s arguments in this regard do not demonstrate 

that the referee erred in granting summary judgment. Rather, Rosenberg seeks to 

relitigate Judge Gerber’s findings and conclusions as to his bad faith conduct in the 

civil litigation. Such arguments are not proper in this disciplinary case. The issue

here is not whether Rosenberg properly raised certain objections to the plaintiffs’ 

motions to compel production; however, he may not repeatedly continue to raise 
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those same objections after they have already been considered and ruled upon, and 

he may not refuse to comply with the numerous orders to compel entered by the 

circuit courts in both Miami-Dade County and Palm Beach County. 

Rosenberg also argues that the referee, in granting summary judgment, 

failed to consider that Judge Gerber was biased against him. Rosenberg suggests 

that Judge Gerber’s bias is evidenced by the fact that, at the hearing on the order to 

show cause why Rosenberg should not be sanctioned, Rosenberg was denied a 

meaningful opportunity to refute the accusations of bad faith conduct, and in 

particular he was not permitted to cross-examine Judge Gerber. However, the 

undisputed facts show that Rosenberg was given notice of the show cause hearing, 

he was offered an opportunity to present evidence on his own behalf, and he chose 

not to testify.

Accordingly, we conclude that the referee fully considered the undisputed 

facts in this case, and we agree that Rosenberg failed to demonstrate material facts 

in dispute. We approve the referee’s order granting summary judgment in favor 

the Bar, as well as the referee’s findings of fact.

Turning to the referee’s recommendations as to guilt, we conclude that the 

undisputed facts amply support the referee’s recommendation that Rosenberg be 

found guilty of violating Bar Rules 4-1.1, 4-3.4(d), and 4-8.4(d). See Fla. Bar v. 

Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005) (stating that “the referee’s factual 
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findings must be sufficient under the applicable rules to support the 

recommendations as to guilt.”). Indeed, given the undisputed facts, it is clear that 

Rosenberg failed to act competently on behalf of his clients, in violation of Bar 

Rule 4-1.1, when he failed to seek documents from his clients after multiple circuit 

court orders compelling production of the documents; when he testified at the 

show cause hearing before Judge Gerber that he believed he had complied with the 

orders to compel production by simply providing the few documents his clients 

had given him, without reviewing those documents; when he did not timely file a 

written response to discovery, as required by the Rules of Civil Procedure; and 

when he continued to raise objections that the circuit court had already considered 

and overruled. We agree with the referee that Rosenberg’s conduct displayed “a 

lack of knowledge, thoroughness, and preparation in his representation.” 

Additionally, the facts as found by the referee demonstrate that Rosenberg 

repeatedly failed to comply with numerous circuit court orders compelling 

production, in violation of Bar Rule 4-3.4(d). And his failure to comply with these 

orders was detrimental to the administration of justice, in violation of Bar Rule 4-

8.4(d). 

Rosenberg urges the Court to disapprove the referee’s recommendations as 

to guilt on the same grounds that he opposes the referee’s order granting summary 

judgment. He also argues that Judge Gerber lacked authority to enter the Order 
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Imposing Attorney’s Fees for Bad Faith Conduct because this Court has exclusive 

jurisdiction to sanction lawyers for misconduct. Rosenberg’s argument is 

unfounded. In Moakley v. Smallwood, 826 So. 2d 221, 226-27 (Fla. 2002), this

Court held that the trial courts possess inherent authority to impose attorneys’ fees 

against an attorney for “bad faith conduct.” Finally, Rosenberg challenges the 

referee’s recommendations as to guilt because he contends that Bar Rules 4-1.1, 4-

3.4, and 4-8.4(d) are unconstitutionally vague in violation of due process. 

However, the Rules of Professional Conduct have consistently been upheld against 

vagueness and due process challenges. See, e.g., Fla. Bar v. Von Zamft, 814 So.

2d 385, 388 n.1 (Fla. 2002) (stating with respect to the respondent’s argument that 

Bar Rule 4-8.4(d) is unconstitutionally vague: “We reject this claim as being 

without merit.”). 

Because Rosenberg has failed to show that the referee’s recommendations as 

to guilt are unsupported, we approve those recommendations and find Rosenberg 

guilty of violating Bar Rules 4-1.1, 4-3.4(d), and 4-8.4(d).

Next, we address the referee’s recommended discipline, a ninety-one day 

suspension. In reviewing a referee’s recommended discipline, this Court’s scope 

of review is broader than that afforded to the referee’s findings of fact because, 

ultimately, it is the Court’s responsibility to order the appropriate sanction. See

Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, §15, Fla. 
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Const. However, generally speaking this Court will not second-guess the referee’s 

recommended discipline as long as it has a reasonable basis in existing case law 

and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. 

Temmer, 753 So. 2d 555, 558 (Fla. 1999).

The referee concluded that Rosenberg’s actions warranted a suspension from 

the practice of law; we agree. See Fla. Stds. Imposing Law. Sancs. 4.52 

(“Suspension is appropriate when a lawyer engages in an area of practice in which 

the lawyer knowingly lacks competence, and causes injury or potential injury to a 

client”); 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 a party, or 

causes interference or potential interference with a legal proceeding”); 7.2 

(“Suspension is appropriate when a lawyer knowingly engages in conduct that is a 

violation of a duty owed as a professional and causes injury or potential injury to a 

client, the public, or the legal system”). However, we find that Rosenberg’s 

repeated failures to comply with court orders and his bad faith conduct, together 

with the aggravating factors found by the referee, warrant a suspension longer than 

ninety-one days. We conclude that a one-year suspension is appropriate.

The referee relied on Florida Bar v. Bloom, 632 So. 2d 1016 (Fla. 1994), as 

the basis for his recommended discipline. In that case, Bloom was named as the

defendant in a lawsuit, resulting from his neglect and mismanagement of a real 
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estate matter. Bloom failed to timely answer interrogatories in the case, attend 

hearings, and pay costs imposed against him based on his failure to answer the 

interrogatories. Id. at 1017. When Bloom did not answer the trial court’s order to 

show cause, the court entered an order imposing sanctions in the amount of 

$16,296. Id. Bloom then failed to answer interrogatories or attend depositions set 

in aid of execution of the judgment. Consequently, the trial court entered an order 

finding Bloom in indirect criminal contempt. On review, the Court found Bloom 

guilty of violating Bar Rules 4-3.4(d) and 4-8.4(d). Id. It held that Bloom’s

“flagrant disregard for the judicial process” warranted a ninety-one day suspension. 

Id.

In the present case, the referee stated he believed Rosenberg’s actions 

warranted a lengthier suspension. Nonetheless, the referee felt constrained by 

Bloom to recommend that Rosenberg be suspended for only ninety-one days. 

Although Rosenberg’s misconduct is similar to that in Bloom, the case is 

distinguishable. For more than a year, Rosenberg refused to comply with 

numerous circuit orders requiring him to produce documents. He also continued to 

raise objections to production that had already been considered and ruled on by the 

circuit court. Both Judge Gerber and the referee noted concerns as to Rosenberg’s 

fitness to practice.
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We must also consider the referee’s findings in aggravation. The referee 

found four aggravating factors: Rosenberg engaged in multiple offenses, and 

multiple instances of the same offense; he has refused to acknowledge the 

wrongful nature of his misconduct; he has substantial experience in the practice of 

law; and he has failed to pay any portion of the attorney’s fee award imposed 

against him in 2007. It is particularly significant that Rosenberg has refused to 

accept the wrongful nature of his misconduct. Rather, he continues to attempt to 

relitigate Judge Gerber’s order imposing sanctions. He has not paid any portion of 

the sanction entered against him, even though Judge Gerber’s order was affirmed 

on appeal in 2009. Moreover, Rosenberg has continued his abusive litigation 

practices before both the referee and this Court; he has filed numerous motions, 

many of which are procedurally improper and without merit.

Finally, as the Bar has pointed out, since the decision in Bloom, the Court 

has moved toward imposing stronger sanctions for unethical and unprofessional 

conduct. See Fla. Bar v. Adler, 126 So. 3d 244, 247 (Fla. 2013) (noting that “this 

Court has moved towards stronger sanctions for attorney misconduct”); Fla. Bar v. 

Rotstein, 835 So. 2d 241, 246 (Fla. 2002) (noting that many of the cases cited by 

the respondent were inapplicable “because the cited cases are dated and do not 

reflect the evolving views of this Court” and that “[i]n recent years, this Court has 

moved towards stronger sanctions for attorney misconduct”). Thus, we conclude 
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that the referee’s recommendation for a ninety-one day suspension is not 

appropriate. We find instead that a one-year suspension is warranted.

CONCLUSION

Accordingly, Respondent Erwin Rosenberg is hereby suspended from the 

practice of law for one year. Additionally, he shall not be reinstated to the practice 

of law until he complies with the terms and conditions set forth in the Report of 

Referee. The suspension will be effective thirty days from the date of this opinion 

so that Rosenberg can close out his practice and protect the interests of existing 

clients. If Rosenberg notifies this Court in writing that he is no longer practicing 

and does not need the thirty days to protect existing clients, this Court will enter an 

order making the suspension effective immediately. Rosenberg shall fully comply 

with Rule Regulating the Florida Bar 3-5.1(h). Further, Rosenberg shall accept no 

new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, 

Tallahassee, Florida 32399-2300, for recovery of costs from Erwin Rosenberg in 

the amount of $3,243.39, for which sum let execution issue.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and 

PERRY, JJ., concur.

LEWIS, J., concurs in result.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE 

EFFECTIVE DATE OF THIS SUSPENSION.
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Original Proceeding – The Florida Bar

John F. Harkness, Jr., Executive Director and Adria E. Quintela, Staff Counsel, 

The Florida Bar, Tallahassee, Florida, and Tonya LaShun Avery, Bar Counsel, The 

Florida Bar, Miami, Florida,

for Complainant

Erwin Rosenberg, pro se, Miami Beach, Florida,

for Respondent