The Florida Supreme Court has prohibited Miami-Dade Circuit Judge Marcia B. Caballero from presiding over further proceedings concerning disbarred attorney Jeremy Alters.
The state Supreme Court added the edict about Caballero in a line in the Nov. 21 order disbarring Alters over misappropriation of about $1 million from his former firm’s trust account. Caballero had recommended no sanctions, and criticized the Florida Bar’s pursuit of the case against Alters, but Florida justices disagreed.
“We disapprove the referee’s recommendations as to discipline and costs,” the high court ruled. “We instead disbar Alters and award the Florida Bar its costs. … We also direct that no further proceedings in this case shall be held before Circuit Judge Marcia B. Caballero as referee.”
Caballero, a Miami-Dade Circuit judge who sits in the Unified Children’s Court Division, served as the Florida Supreme Court-appointed referee in the Florida Bar’s disciplinary case against Alters. She cited the Florida Supreme Court’s discretion in accepting or rejecting a referee’s findings.
“After being appointed as referee on this case, I carefully evaluated and weighed all of the evidence and witnesses and thereafter produced my comprehensive report,” she said. “The Supreme Court has now ruled on the matter as they have the ultimate authority.”
The judge’s report to the high court not only vindicated Alters of many of the charges against him, but also accused the Florida Bar of being overly draconian in its investigation of the once-prominent lawyer and Democratic Party fundraiser.
The initial November 2016 report by Caballero recommended that the Florida Supreme Court dismiss the ethics case against Alters, a former personal injury attorney who once led Alters Boldt Brown Rash & Culmo.
More than $1 million went missing from the firm’s trust fund account in 2009 and 2010. Alters testified that he was initially unaware of the problem, but did not report it to the bar when he did find out. He said he instead replaced the missing funds. Alters then blamed former managing partner Kimberly Boldt, who denied any wrongdoing. He claimed he left “people in charge that I probably should not have in retrospect,” and maintained his innocence.
But the Florida Bar dismissed its ethics case against Boldt and pursued charges against Alters.
Caballero disagreed. Her report recommended the high court find Alters not guilty of fraud, misconduct and misappropriating funds, and called sanctions against him “disproportionate.”
“It was clear to this referee that the bar stridently pursued the wrong lawyer,” Caballero wrote in 2017. “It was Ms. Boldt who, despite her denials, authorized over $1 million of improper trust account transfers. … There was no evidence that [Alters] authorized or that he knew about the improper trust account transfers when they occurred.”
The referee did, however, recommend the court find Alters guilty of two charges for failing to safeguard and prevent problems concerning the firm’s funds. She also held that the Florida Bar should compensate Alters $143,000 to cover his litigation expenses in the ethics case, and described the $305,000 in prosecution costs sought by the bar as excessive.
Florida Bar spokeswoman Karen Kirksey told the Daily Business Review the bar does not comment on disciplinary cases or pending litigation.
‘Wholesale Rebuttal of the Referee’
The Florida Supreme Court’s order disbarring Alters repeatedly repudiates Caballero’s recommendations and findings.
“While it is not uncommon for attorneys to be severely punished for trust account violations, the opinion is an extraordinary denunciation of the referee’s report,” law professor Jan Jacobowitz told the Daily Business Review.
Jacobowitz, who chairs the Professional Responsibility & Ethics Program at the University of Miami School of Law, said the high court’s opinion makes no secret of its dissatisfaction with Caballero’s conclusions.
“The opinion notes at each juncture that generally the Florida Supreme Court accepts a referee’s recommendations, but then cites both legal support and analysis for overturning the referee’s recommendations in this case,” she said.
Jacobowitz added that in her experience, she has not seen similar Florida Supreme Court opinions articulating “a wholesale rebuttal of the referee” in disciplinary cases.
“Even the tone of the opinion, the length and all of the citations … seems a bit unusual,” she said. “They’re absolutely putting the nail in the coffin of the referee’s recommendation.”
Read the Florida Supreme Court’s order:
The UM lecturer added that the tone of the state supreme court’s order and Alters’ disbarment underscore the seriousness with which the justices regarded violations of the rules surrounding trust accounts and money entrusted to attorneys.
“There is no question that the Florida Supreme Court has historically considered trust account violations to be ‘one of the most serious offenses’ that presumptively leads to disbarment without significant mitigating factors,” she said. “ I think trust accounts and the handling of money for lawyers often becomes a really slippery slope, where a lawyer doesn’t appreciate the severity [of the situation]; once you move money where it’s not supposed to be, it’s tantamount to theft.”
Alters’ legal counsel Andrew Berman, a senior partner with Fort Lauderdale-based Young, Berman, Karpf & Gonzalez, declined to comment.