# Supreme Court of Florida

____________ No. SC15

- 385

____________ THE FLORIDA BAR , Complainant,

vs. JEAN M. PICON , Respondent. [December 8, 2016] PER CURIAM. We have for review a refe ree’ s report recommending that respondent, Jean M. Picon, 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. Picon has petitioned f or review, challenging the sufficiency of the referee’s report , the referee’s recommendations as to guilt, and the referee’s recommended discipline. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow , we reject Picon’s chall enge s to th e sufficiency of the referee’s report and approve the referee’s findings of fa c t and recommendations of guilt. However, we disapprove the referee’s recommende d discipline as too lenient- 2

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in light of the number of acts of cl ient neglect committed by Picon and her prior disciplinary record . We instead impose a one

- year suspension from the practice of law

. I. FACTS In February 2015, The Florida Bar filed a complaint against Picon alleging that she , as counsel of record in three separate criminal cases, engaged in misconduct in violation of several Bar Rules. A referee was appointed to consider the Bar’s complaint. After conducting a hearing on both guilt and discipline, the referee submitted a report for the Court’s review, in which he made the following findings and recommendations.
I n State v. Smith , Picon , as counsel of record for the defendant, repeatedly failed to timely appear for court proceedings before Judge Charles Roberts. On one specific occasion, Judge Roberts directed the parties in the cas e to return to court at a specific time to address matters outside the p resence of the jury. Picon failed to abide by Judge Roberts’ explicit instructions and returned to court tardy. She also disregarded explicit instructions from Judge Robert s to file a pretrial motion by a specific date before the commencement of trial. She instead filed the motion at three o’clock in the morning the day tr ial was scheduled to commence. Picon acknowledged in her testimony before the referee that she knew sh e was not in compliance with Judge Roberts’ directive when she filed the motion.- 3

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Picon’s conduct in the Smith case ultimately resulted in Judge Roberts initiating contempt proceedings against her. During those proceedings, Judge Roberts stated:
I can no longer tolerate this. It is impacting my ability to function as a judge in this division. It impacts my ability to service all the defense attorneys out there and their clients. It impacts witnesses and now a venire. Adjudication was withheld by Judg e Roberts in the contempt proceedings and Picon was order ed to pay a $250 fine, perform twenty

- five hours of community service, and write a letter of apology to every judge and judicial assistant in the criminal division. The Fifth District Court of Appea l affirmed the

co ntempt order

. Picon v. State , 149 So. 3d 35 (Fla. 5th DCA 2014) (table)

. In State v. Jennings , Picon represented a defendant in a criminal proceeding before Judge David Dugan. On November 26, 2013, Respondent failed to attend a schedu led hearing with her client, resulting in the issuance of a bench warrant and the incarceration of her client for five days. The hearing had been scheduled at the court’s direction and a notice to appear had been served on Picon. Picon was also notified of the hearing date and time via e

- mail from the prosecuting att orney. Picon, however, failed to add the hearing date and time to her calendar or read the

e - mail from the prosecuting attorney.
In State v. Richardson , Picon , as counsel of record for the defendant, knowingly appeared for a hearing on December 19, 2013, before Judge Stephen- 4

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Koons on her client’s motion to modify probation without her client and at a time other than that provided by the court in the notice to a ppear. Judge Koons, nevertheless, proceeded with the hearing. During the hearing, Picon presented incorrect information regarding her client’s compliance with the terms and conditions of her probation, resulting in the denial of the motion. Later that s ame day, Picon ’s client appeared before Judge Koons at the time stated in the no tice to appear. At that point, several unsuccessful attempts w ere made to ascertain Picon ’s whereabouts and determine whether she would be attending the hearing at the schedul ed time. Judge Koons ultimately permitted Picon ’s client to proceed pro se and, upon consideration of the docum entation presented by Picon ’s client, granted the relief sought in her motion. The referee also found that Picon frequently failed to notify the court and opposing counse l of conflicts in her schedule. Opposing counsel often attempted
to reach Picon by phone to ascertain her whereabouts and whether or not she planned to attend a scheduled hearing. Such attempts, however, were often unsuccessf

ul and voicemail messages could not be left for Picon because her inbox was routinely full. Also, judicial assistants and other court personnel would o f ten go to great lengths to determine Picon’s whereabouts and whether she would be
att ending a hea ring. Such lengths included court deputies utilizing the intercom- 5

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system to contact each other in an attempt to ascertain Picon’s whereabouts and whether she would be attendi ng a hearing. O n these facts, t he ref

eree recommended that Picon be found guilty of vi olating Bar R ule s 4

- 1.1 (“A lawyer shall provide competent rep resentation to a client.”); 4

- 1.3 (“A lawyer shall act with reasonable diligence and promptness i n representing a client.”); 4

- 3.4(c) (“A lawyer must not knowingly disobey an obligation under the rule of a tribunal.

. .”); 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... ” ).
T he referee found five aggravating factors: Picon engaged in a pattern of misconduct; committed multiple offenses; had substantial experience in the practice of law; harmed vulnerable victims; and had a prior disciplinary record that included a ten

- day suspension for failin g to timely appear for cour t proceedings, a thirty

- day sus pension for failing to comply with this Court’s suspension order, and a public reprimand for failing to timely respond to in quiries from the Bar

. The referee also found four mitigating factors: Pic on lacked a dishonest or selfish motive; had personal or emotional problems; other penalties and sanctions had been imposed against her; and Picon expressed remorse for her conduct. As a sanction, t he referee recommended that Picon be suspended from the p ractice of- 6

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law for ninety

- one days . He also recommended that costs be awarded to the Bar in the amount of $6,699.01. Picon filed a notice of intent to seek review of the report of referee , challenging the proceedings before the referee and the sufficiency of the referee’s report, the referee’s recommendations as to guilt , and the referee’s recommended discipline

. On June 30, 2016, we issued an order directing Picon to show cause why the referee’s recommended discipline should not be disappr oved and a more severe sanction be imposed. The order also provided that, on the Court’s own motion, Picon was suspended “until further order of this Court.”
II. ANALYSIS Sufficiency of the Referee’s Report We first address several challenges by Picon to the sufficiency of the referee’s report. Picon argues that the report of referee in this case does not reflect the referee’s independent judgment and that the referee merely adopted the Bar’s proposed report of referee verb atim. As a general rule, a referee’s findings and recommendations must demonstrate independent decision

- making. A referee is not precluded, however, from adopting one party’s proposed report of referee if the record reflects that the referee exercised in dependent decision

- making in doing so. See Fla. Bar v. Barrett , 897 So. 2d 1269, 1273 (Fla. 2005) ; Fla. Bar v. Cramer , 678 So. 2d 1278, 1279 (Fla. 1996)

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We are convinced by our review of the record in this case that the referee exercised independent deci sion

- making in making his findings and recommendations. Both Picon and the Bar were given the opportunity to present argument s at the end of the disciplinary hearing on what findings should be made and what sanction, if any, was appropriate. After hearin g argument from Picon and the Bar, the referee informed the parties that he planned to seek an extension of time to file his report in order to “give [the] case a hard review.” His willingness to listen to the parties’ arguments and desire to give the cas e a “hard review” indicate that the referee did not blindly adopt the Bar’s proposed report of referee in this case. S uch acts indicate that the referee distilled the evidence and argument s presented to him, and exerci sed independ en t decision

- making in de ciding whether to adopt the Bar’s proposed report of referee.
Picon also argues that the referee failed to state on the record what spec ific findings and recommendations he intended to make in the report of referee, and that the findings and recommendations contained in the report of referee do not comport with statements made by the referee during the disciplinary hearing. There is no requirement in Bar discipline cases that a referee state on the record what findings and recommendations he or she intends to ma k e in the report of referee. The only place a referee is required to set out his or her findings and recommendations is within the report of referee that is submitted to this Court. See- 8

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R. Regulating Fla. Bar 3

- 7.6(m). The report, an d the findings and recommendations contained therein, are not required to comport with any statements made by the referee during a disciplinary hearing. Lastly, Picon contends that the referee did not provide her with an opportunity to respond to argume nt from the Bar regarding her prior dis ciplinary record or the Bar’s proposed report of referee, that the Bar’s arguments to the referee regarding her prior disciplinary record violated Bar Rule 3

- 7.6(m)(1)(D), and that the referee was not adequately famil iar with the Bar discipline process. Picon had ample opportunity to present each of these arguments to the referee , but failed to do so. As a result, she has failed to preserve these issues for review in this Court. See Fla. Bar v. Miller , 863 So. 2d 23 1, 236 (Fla. 2003) (claims not first raised in the proceedings before the referee were waived by respondent). The Referee’s Findings of Fact and Recommendations of Guilt We next address the ref

eree’s find ings of fact and recommendation that Picon be foun d guilty of violating Bar Rules 4

- 1.1, 4

- 1.3, 4

- 3.4 (c), and 4

- 8.4(d).
Thi s Court’ s review of a referee’s findings of fact is limited. I f a referee’ s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick , 756 So. 2d 79, 86 (Fla. 2000 ); s ee also Fla. Bar v. Jor dan , 705 So. 2d 1387, 1390 (Fla. 1998). Also, a referee’ s factual findings must be- 9

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sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas , 913 So. 2d 554, 557

- 58 (Fla. 2005). In the present case, neithe r party contests the referee’s factual findings or the referee’s recommendation that Picon be found guilty of violating Bar Rules 4

- 1.3 and 4

- 8.4(d). Having reviewed the record in this case, w e conclude that the referee’s factual findings are supported by competent, substantial evidence , and that such findings support the referee’s recommendation that Picon be found guilty of violating Bar Rules 4

- 1.3 and 4

- 8. 4(d)

. We therefore approve the referee’s findings of fact and recommendation of guilt as to Bar R ules 4

- 1.3 and 4

- 8.4(d). Picon does challenge the referee’s recommendation that she be found guilty of violating Bar Rules 4

- 1.1 and 4

- 3.4(c). Picon first urges the Court to disapprove the ref eree’s recommendation of guilt a s to Bar Rule 4

- 1.1, which requires that a lawyer provide competent representation to a client. Competent repre sentation is defined by the rule as having the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. R. Regulating Fla. Bar 4

- 1.1 . The refere e found that Picon appeared for court proceedings in the Smith , Jennings , and Richardson cases either late, at a time other than provided by the court, or not at all. Her failure to timely attend to her client’s cases disrupted proceedin gs in the Smith case, resulted in the issuance of a bench warrant in the Jennings case, and the presen tation of incorrect information to the court in the- 10

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Richardson case. Picon argues that her conduct in the Smith , Jennings , and Richardson cases does not constitute a violation of Bar Rule 4

- 1.1 and that she provided her clients with competent legal representation. This Court, however, has not taken such a narrow view of competence, and has recognized that demonstrated neglect of key client matters constit utes a violation of Bar Rule 4

- 1.1. See Shoureas , 913 So. 2d at 557

- 58 ( failure to respond to client inquiries and attend to client matters violated Bar Rule 4

- 1.1); Fla. Bar v. Centurion , 801 So. 2d 858 , 860 (Fla. 2000) ( failure to attend to client matte rs and comply with a court order violated Bar Rule 4

- 1.1). Accordingly, we approve the referee’s recommendation that Picon be found guilty of violating Bar Rule 4

- 1.1. Picon also urges the Court to disapprove the referee’s recommendation o f guilt as to Ba r Rule 4

- 3.4(c). The rule prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal , except for an open refusal based on an assertion that no valid obligation exists. R. Regulating Fla. Bar 4

- 3.4(c). Th e referee found that Picon disregarded a direct o r der from Judge Roberts to file a pretrial motion before the co mmencement of trial and disobeyed a directive from the court to appear at a proceeding in the Jennings case. Picon claims that these acts were done unintentionally and not “knowingly,” as required by Bar Rule 4

- 3.4(c). The Rules of Professi onal Conduct provide that- 11

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“ ‘[k] nowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question.” See Preamble: A L awyer’s Responsibilities, Rules of Professional Conduct; see also Fla. Bar v. Committe, 136 So. 3d 1111, 1115 (Fla. 2014). Picon clearly had knowled ge of Judge Roberts’ order and admitted in the proceedings before the referee that she knew she was not in compliance with it when s he filed the motion at three o’clock in the morning the day trial was to commence. Picon also clearly had knowledge of when the proceedings in the Jennings case were sch eduled to occur, having received court documents and e

- mails containing the date and t ime of the hearing. Accordingly, we approve the referee’s recommendation that Picon be found guilty of violating Bar Rule 4

- 3.4(c).

The Referee’s Recommended Discipline Lastly, we address the referee’s recommended discipline , a ninety

- one day suspension. In reviewing a referee’s recommended discipline, the 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. Const . At the same time, the Court will generally not second

- guess the referee’s recommended discipline, as long as it has a reasonable basis in existing case law and the Florida Stand ards for Imposing Lawyer Sanctions. See Fla. Bar v.
Temmer , 753 So. 2d 555, 558 (Fla. 1999)

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We agree with the referee that Picon’s misconduct clearly warrants a suspension. See Fla. Stds. Imposing Law. Sancs. 4.42 (suspension is appropriate when “a l awyer knowingly fails to perform services for a client and causes injury or potential injury to a client” or “engages in a pattern of neglect and causes injury or potential injury to a client”); Fla. Stds. Imposing Law. Sancs. 6.22 (suspension is appropria te 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 interfer ence with a legal proceeding”) . However, considering the multiple acts of client neglect committed by Picon , the harm caused to her clients, and her extensive prior disciplinary record, we believe that a ninety

- o ne day suspension is not appropriate and that a more severe sanction is warranted. We find that the appropriate sanction for Picon’s misconduct is a one

- year suspension from the practice of law. Picon’s acts of client neglect in this case are part of a pattern of client neglect and mismanagement that Picon has engaged in for several years. To date, Picon has been disciplined by this Court for engaging in comparable misconduct in three o ther cases . In 2008, Picon was suspended for ten days and placed on probation for two years for her failure to timely appear for court proceedings. Fla. Bar v. Picon , 975 So. 2d 430 (Fla. 2008) (tabl e). Picon was again suspended in 2011 for thirty days for her failure t o comply with this Court’s 2008 suspension- 13

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order. Fla. Bar v. Picon , 61 So. 3d 1114 (Fla. 2011) (table). In 2013, Picon was publicly reprimanded for her failure to timely respond to inquiries from the Bar. Fla. Bar v. Picon , 129 So. 3d 1070 (Fla. 2013) (table). This Court has long held that “cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar c onduct.” Fla. Bar v. Walkden , 950 So. 2d 407, 410 (Fla. 2007). Further, w e have previously imposed long

- term rehabilitative suspensions in

cases where an attorney has committed multiple acts of client neglect. Notably, i n Fla. Bar v. Cimbler , 840 So. 2d 955 (Fla. 2002) , we suspended an attorney with a prior disciplinary record for one

- year for his negligent representation of three separate clients. The attorney failed to timely record a deed and pay fees associated w ith a real estate transaction on behal f of one client , failed to appear at multiple hearings on behalf of a nother client, and failed to inform a third client that he was required to appear at a deposition

. Id. at 956

- 58. The Court disapproved the referee’s recommended ninety

- one day suspensi on, finding that the seriousness of the acts of neglect, the cumulative nature of the misconduct, and the attorney’s prior discipline history warranted a lengthier suspension. Id. at 959. In doing so, we stated “[f]ailing to represent one ’ s client zealously, failing to communicate effectively with one ’ s client, and failing to provide competent representation are all serious deficiencies.” Id. at 960 (quoting Fla. Bar v. Roberts , 689 So. 2d 1049,- 14

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1051 (Fla. 1997); see also Shoureas , 892 So. 2d at 1 0 09 (citing multiple cases where the Court imposed a lengthy suspension for client neglect).
Moreover , Picon’s misconduct is particularly egregious in that it result ed in a bench warrant being issued in the Jennings case for her client and her client’s inc arceration for several days. In Fla. Bar v. Gass , 153 So. 3d 886 (Fla. 2014) , an attorney , among other things, advised his clients to not comply with a subpoena to attend a deposition, failed to attend a scheduled deposition and court hearing on behalf of his clients, and failed to inform his clients that an order directing them to show cause why they should not be held in contempt had been issued. Id. at 888

- 90. The attorney’s misconduct ultimately resulted in a bench warrant being issued for his client s and the incarceration of his clients for three days. Id. T he Court disapproved the referee’s recommended sixty

- day suspension and, noting the particu larly egregious nature of the attorney’s misconduct, imposed a one

- year suspension. Id. at 892

- 93. We have also considered the referee’s findings in aggravation and mitigation , which we approve without further discussion. While we commend Picon’s showing of remorse, we conclude that the evidence of mitigation is insufficient to overcome Picon’s serious misconduct.- 15

- III. CONCLUSION Accordingly, Jean M. Picon is hereby suspended from the practice of law for

one year. The suspension shall be effective, nunc pro tunc, July 30, 2016 , the date on which Picon’s suspension, imposed in this Court’s order of June 30, 2016, became effective. Because Picon is currently suspended, it is not necessary to provide her with thirty days to close out her practice to protect the interests of existing clients. Picon shall fully comply with Rule Re gulating the Florida Bar 3

- 5.1(h ). Further, Picon shall accept no new business from the date this opinion is filed until she is reinstated by order of this Court. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399

- 2300, for recover y of cos ts from Jean M. Picon i n the amount of $6,699.01 , for which sum let execution issue. It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE E FFECTIVE DATE OF THIS SUSPENSION. Original Proceeding

– The Florida Bar John F. Harkness , Executive Director , The Florida Bar, Tallahassee, Florida; Adria E. Quintela , Staff Counsel, The Florida Bar, Sunrise, Florida ; and Patricia Ann Toro Savitz , Bar Counsel, The Florida Bar, Orlando , Florida, for Complainant- 16

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Jean M. Picon , p ro s e, Melbourne, Florida, for Respondent