SC04-2460 – The Florida Bar v. Steven Ray Brownstein

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SC04-2460 – The Florida Bar v. Steven Ray Brownstein – Correction Opinion

State: Florida

Court: Supreme Court

Docket No: sc04-2460

Case Date: 04/05/2007

Plaintiff: SC04-2460 – The Florida Bar

Defendant: Steven Ray Brownstein – Correction Opinion

Preview:Supreme Court of Florida
No. SC04-2460
THE FLORIDA BAR,
Complainant,
vs.
STEVEN RAY BROWNSTEIN,
Respondent.
[March 29, 2007]
CORRECTED OPINION
PER CURIAM.
We have for review a referee’s report recommending that Steven Ray
Brownstein be found guilty of professional misconduct and suspended from the
practice of law for three years.  We have jurisdiction.  See art. V, § 15, Fla. Const.
Brownstein pled guilty to all rule violations and stipulated to the following
facts:
1.   Respondent is and was at all times material herein a member
of The Florida Bar, albeit suspended by an order of emergency
suspension dated November 8, 2004, and subject to the jurisdiction
and disciplinary rules of the Supreme Court of Florida.
2.   On or about August 26, 2004, a subpoena duces tecum was
duly executed and served upon Steven Ray Brownstein, Esquire,
commanding him to appear before [The Florida Bar’s] staff auditor on

September 14, 2004, at 10:00 a.m. at the offices of The Florida Bar
and produce at that time original bank statements, canceled checks,
check stubs, deposit slips, wire transfers, cashier’s checks issued with
supporting documentation, receipt and disbursement journals, client
ledger cards, HUD-1 statements for all real estate transactions, closing
statements from any personal injury case, bank and client
reconciliations from the account identified as Steven R. Brownstein,
maintained at Union Planters account #1400022665 (Operating), and
any other trust account in which he has signatory capacity and any
other account in which the funds pertaining to Mobilestop were
placed, for the period of January 1, 2003, to the present.  In addition, a
subpoena was also issued to the banking institution.
3.   The request for an audit was predicated upon the complaint
of James P. E. Roen, Esquire, a partner with Respondent in the firm of
Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso, LLP.
Mr. Roen stated that Respondent failed to disburse client’s funds that
were entrusted to him, specifically $20,000.00 from a settlement of
$80,000.00 received by Respondent in October 2003, regarding a
corporation identified as Strax.
4.   In January 2004, Respondent issued from the bank account
identified as Steven R. Brownstein, maintained at Union Planters
Bank account #1400022665 (Operating), two checks in the amount of
$10,000.00 each payable to Alan Goldberg Trustee and identified the
disbursements as “Strax Settlement.”  Those two checks were
dishonored by the bank due to non-sufficient funds.
5.   On or about April 2, 2004, Alan L. Goldberg (the Trustee),
Chapter 7 Trustee for the estates of Mobilestop Com, Inc., filed a
“Motion of Alan L. Goldberg, Chapter 7 Trustee (I) To Compel
Compliance With Settlement and Compromise or, in the Alternative,
For Entry of Judgment Against Defendants for the Settlement Balance
and (II) For Order to Show Cause as to Why Attorney Steven R.
Brownstein Delivered Two Worthless Checks to the Trustee.”
6.   On September 14, 2004, Respondent failed to appear or
produce to The Florida Bar any of the records identified in the Bar’s
subpoena.
7.   On or about October 14, 2004, Union Planters Bank
delivered the bank statements, canceled checks and items deposited
from account #1400022665 (Operating), for the period of January 1,
2003, to April 30, 2004, and the account identified as Steven R.
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Brownstein, Trust Account #1700020544 (Trust), for the period of
January 1, 2003, to July 31, 2004.
8.   On October 15, 2003, the beginning balance in Respondent’s
trust account #1700020544 (Trust), was $50.30.  On the same day,
Respondent deposited a check from Great American Insurance
Companies in the amount of $40,000.00, payable to Steven R.
Brownstein Trust, regarding the insured Strax Holdings, Inc.
9.   These funds were used by Respondent in the following
manner:
D A T E     CK # P A Y E E                                                                                                              AMOUNT           R E F E R E N C E
10-16-03                                                                    889   Levey, Airan, Brownstein              $   5,000.00    Strax
10-22-03                                                                    890   Steven Brownstein                         6,500.00    No reference
10-22-03                                                                    891   Steven Brownstein                         6,500.00    No reference
10-28-03                                                                    892   Steven Brownstein                         2,600.00    No reference
10-31-03                                                                    893   Steven Brownstein                         1,500.00    No reference
                                                                            11-17-03    W/T  Levey, Airan, Brownstein       17,500.00   Ocean Bk
11-28-03                                                                    894   Steven R. Brownstein                      212.00      Strax
10.   On November 30, 2003, the balance in Respondent’s trust
account was $238.70.  On December 15, 2003, Respondent issued
another check in the amount of $238.00 to himself, leaving a balance
in the trust account of $0.30.  This was the last transaction recorded in
this trust account.
11.   Respondent was pressured by the Bankruptcy Trustee to
repay $20,000.00 received on October 15, 2003, from the Strax
settlement.  On or about January 23, 2004, Respondent issued from
account #1400022665 (Operating), his check #8546 in the amount of
$10,000.00 payable to Alan Goldberg, Trustee and identified the
disbursement as pertaining to “Strax.”  On January 23, 2004, the
balance in Respondent’s account #1400022665 (Operating) was an
overdraft in the amount of $8,524.89.
12.   On February 9, 2004, check #8546 in the amount of
$10,000.00 was presented to the bank for payment and was
dishonored due to insufficient funds.  The balance in the account on
February 9, 2004, was $184.82.
13.   On or about January 30, 2004, Respondent issued from
account #1400022665 (Operating), his check #8547 in the amount of
$10,000.00 payable to Alan Goldberg, Trustee and identified the
disbursement as pertaining to “Strax.”  On January 30, 2004, the
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balance in Respondent’s account #1400022665 (Operating) was
$220.11.
14.   On February 9, 2004, check #8547 was presented to the
bank for payment and was dishonored due to insufficient funds.  The
balance in the account on February 9, 2004, was $184.82.
15.   From March 10, 2003, to April 27, 2004, Respondent’s
bank account #1400022665 (Operating) had checks presented thirty
(30) times to the bank and dishonored due to insufficient funds.
16.   The following transactions between Respondent’s two
accounts revealed [the law firm of Levey Airan Brownstein, et al. is
referred to as “L.A.B.”]:
BANK
                                                                       D A T E     T R A N S A C T I O N  DEPOSITS  PAYMENTS   BALANCE
01-07-04    Ck 8539 L.A.B.                                             $ 3,000.00                                              ($3,315.63)
01-09-04    From L.A.B.                                                3,500.00                                                7.30
01-14-04    From L.A.B.                                                4,000.00                                                ( 2,637.89)
01-15-04    Ck 8545 L.A.B.                                             2,300.00                                                ( 5,266.89)
01-16-04    From L.A.B.                                                3,000.00                                                ( 2,324.89)
01-20-04    From L.A.B.                                                3,300.00                                                975.11
01-23-04    Ck 8549 L.A.B.                                             9,500.00                                                ( 8,524.89)
01-26-04    From L.A.B.                                                8,640.00                                                86.11
01-27-04    Ck 8550 L.A.B.                                             6,284.00                                                ( 6,197.89)
01-28-04    From L.A.B.                                                6,630.00                                                403.11
01-29-04    Ck 8551 L.A.B.                                             8,874.00                                                ( 8,470.89)
01-30-04    From L.A.B.                                                9,000.00                                                220.11
02-03-04    Ck 8557 L.A.B.                                             11,000.00                                               ( 12,545.15)
02-04-04    From L.A.B.                                                12,700.00                                               96.85
02-05-04    From L.A.B.                                                2,800.00
02-05-04    Ck 8559 L.A.B.                                             14,000.00                                               (11,132.15)
02-06-04    From L.A.B.                                                14,500.00                                               438.85
02-10-04    Ck 8561 L.A.B.                                             14,788.00
02-10-04    Bank dishonored
check 8561                                                             14,788.00                                               68.82
02-12-04    Ck 8562 L.A.B.                                             8,898.00
02-12-04    Bank dishonored
check 8562                                                             8,898.00                                                39.82
02-19-04    Ck 8564 L.A.B.                                             9,500.00
02-19-04    Bank dishonored
check 8564                                                             9,500.00
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02-19-04    Ck 8565 L.A.B.                                                            3,500.00
02-19-04    Bank dishonored
check 8565                                                                            3,500.00   10.82
17.   Every check issued or deposited from/or to Levey Airan
Brownstein, et.al., was signed by Respondent.  In February, 2004,
Union Planters Bank dishonored checks issued by Respondent if the
account did not have sufficient funds to cover it.
18.   Based upon the foregoing, Respondent has violated Rule 4-
8.4(c) (A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation), of the Rules of Professional
Conduct; and Rule 5-1.1(a) (Nature of Money or Property Entrusted
to Attorney), Rule 5-1.1(b) (Application of Trust Funds or Property to
Specific Purpose), Rule 5-1.1(e) (Notice of Receipt of Trust Funds;
Delivery; Accounting), Rule 5-1.2(b) (Minimum Trust Accounting
Records), Rule 5-1.2(c) (Minimum Trust Accounting Procedures), and
Rule 5-1.2(d) (Record Retention) of the Rules Regulating Trust
Accounts.
At the final hearing, the parties presented evidence pertaining to aggravating and
mitigating circumstances.  At this hearing, counsel for the Bar called Carlos Ruga,
its staff auditor.  Ruga explained how Brownstein used the two checking accounts
involved: his operating funds account and his trust fund.  As to Brownstein’s
operating funds account, from January 2003 until June 2003, Brownstein bounced
checks on thirty occasions.  Ruga also testified that Brownstein commingled the
funds from his operating account with his trust funds account.  He would then
deposit money from his operating account into his trust fund account.  While Ruga
asserted that Brownstein used the Strax trust fund money for his personal use,
Ruga was unable to perform a complete audit as to the trust account because
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Brownstein did not produce all of the records, including the client ledger cards and
journals.
As his first witness, Brownstein called Dr. John Eustace, who had an
extensive history performing mental health evaluations.  Dr. Eustace first saw
Brownstein in late December 2004, after the Bar grievance proceedings began.  In
his opinion, Brownstein had a “seriously advanced major depressive disorder.”
Brownstein met seven out of nine criteria for major depressive disorder and
eighteen out of the twenty-one criteria on the Beck’s Depression Scale.  He further
asserted that this disorder was recurrent, affecting three different periods of
Brownstein’s life.  The prior episodes did not last as long, however, and were less
serious.  Based on his diagnosis, Dr. Eustace recommended that Brownstein
become involved in a comprehensive program of mental health treatment,
including medication, individual treatment, and family treatment.  Dr. Eustace last
saw Brownstein shortly before testifying and stated it was his opinion that there
was marked improvement, including his observations that Brownstein was no
longer exhibiting suicidal ideations, had more energy, was beginning to interact
with family and friends, and was willing to face the consequences of his bad acts.
Dr. Eustace’s opinion was that the misconduct was a symptom of the disorder—
that “but for” the depression, he would not have committed the acts.
- 6 -

Brownstein then called Myer Cohen, the Executive Director of Florida
Lawyers Assistance (FLA), who discussed how FLA supervises the attorneys who
have signed contracts with them.  As his third witness, Brownstein called Tod
Aronovitz, one of his long-time friends.  Aronovitz testified that he noticed that
there was a period of several years where Brownstein was not as happy as usual—
that he was more serious or melancholy than usual.  In December 2004,
Brownstein talked to Aronovitz about the problems he was having.  Aronovitz
never would have guessed Brownstein could have a problem with the Bar because
Brownstein had a very high reputation in the legal community and was regarded as
an honest person.  Although Aronovitz was not familiar with all of the charges
against Brownstein, he asserted that any misconduct was an anomaly—Brownstein
devoted his entire life to doing things right.
Next, Brownstein called Ester Sardina, his executive assistant and former
secretary.   When she first started working for him, Brownstein was upbeat and
generous, a good boss and person.  However, around May 2000, he changed.  He
started asking her to hold his calls and would shut the door and lie on his couch.
He would show up for work later and later.  Although this behavior appeared rarely
at first, it progressed and became more frequent.   Clients would complain to her
that he was not returning their calls.  When she walked into the office, he was
frequently asleep on his couch with his light off.  In fact, the behavior was so
- 7 -

obvious that the other secretaries kidded her about what an easy job she had since
her boss just slept.  Brownstein paid her salary himself, and a few times the checks
bounced.  Sardina also learned that Brownstein failed to pay to the government the
withholding taxes from her salary.  Brownstein also did not pay the payroll taxes
which were owed for Sardina’s social security benefits.  Through the date of the
hearing, these payments still were not made.
Brownstein was the final witness.  He first detailed his thirty-one years as an
attorney.  Although there were times in his life when he was not “functioning on
all cylinders,” Brownstein did not admit his condition or seek medical treatment
until after the Bar began its investigation in 2004.  The last episode of the
depression lasted for a significant period and got progressively worse until it was a
struggle to come to his office at all.  He tried to work but could not function, so he
would lie down and sleep for hours.  Rather than confront the problem, he
withdrew further.
Brownstein discussed the misconduct relating to the Strax matter first.
While he was generally in a depressed mood during this time, there were times
when he was “up” for a few days, until his mood took another down-turn.
Brownstein explained how during one of his great lucid moments, he convinced
the client that his firm had the ability to defend the Strax case.  The client chose
Brownstein as its attorney, and Brownstein helped settle the matter for $80,000,
- 8 -

which was significantly less than the high six-figure amount initially sought by the
trustees.  Brownstein was also able to get the insurance company to assume half of
the coverage.  The client paid $40,000, which went into the firm trust account, and
the insurance company paid the other $40,000, which went into the Brownstein
trust account.  Brownstein paid the trustee the $40,000 that was in the firm trust
account and then paid the trustee $20,000 from the Brownstein trust account,
leaving $20,000 due.  Brownstein, however, used this money for personal uses.
When the trustee asked about the remaining funds due, Brownstein lied, telling the
trustee that the money had not come in yet but that he would pay it himself if there
was any problem recovering it.  After months passed, the trustee filed a motion to
compel settlement.   Brownstein borrowed the missing money from a long-time
friend and then gave a cashier’s check to the trustee, who withdrew the motion to
compel settlement.
When he was asked whether he had ever used trust account money before,
Brownstein testified that he remembered taking a client’s funds once in the 1990s
and then putting the money back into the trust account.  From the period of 2000
through 2004, he did use trust account funds for his own use, although he could not
recall on how many occasions this occurred.  When he did take out any money,
Brownstein stated that he put it back again, and no client ever complained or lost
money.
- 9 -

When asked why he did this, he told the court that he had no excuse but that
he was not mentally healthy during the time.  He then explained how different he
was from his normal self and how his depression affected all aspects of his life.
When asked whether his motive in taking the money was selfish or dishonest,
Brownstein replied, “I don’t think so.   I don’t believe so.  Dishonest, I guess, is a
relative term.  By taking it, I knew that it was improper.  So I can’t say—.”  He
denied that he was trying to deprive his client of any money, asserting that he
could have easily borrowed the money from a number of people to pay back the
money.
Brownstein also addressed the charges of check kiting, explaining that even
though he had two different accounts, one personal and one for the firm, the firm’s
account was basically all his because the other partner had a different account.  He
explained that he would write a check, thinking that he had money coming in.
When the money did not come in sufficiently to cover the checks he had already
written, the bank called him, asking for him to cover it, so he would write a check
from his other account.  Brownstein admitted that he knew he did not have the
money in the account at that time.  During the five-week period in question, he
used this as a mechanism when he was short of funds to solve the problem until he
got the money.  The bank charged him fees for the bounced checks, and since the
- 10 -

money eventually came in, he asserted that the bank “was not out” any money.
The bank never closed his accounts because of this problem.
Brownstein also admitted to other misconduct that was not charged.
Brownstein had not filed income tax returns for the years 2000, 2003, and 2004.
He also failed to pay his secretary’s IRS taxes.  At the time of the hearing,
Brownstein asserted that he was attempting to rectify the IRS problem by hiring a
certified public accountant to prepare the necessary documents to resolve the
problems regarding his delinquent taxes and his secretary’s withholding taxes.
Brownstein also admitted that he failed to give the Bar all of the records they
needed and asserted that he did not have any client ledger cards and journal.  While
Brownstein recognized that he knew he should have a client ledger, he testified
that he did not have a high volume of clients with trust fund money—only about
thirty clients over four years—so it was simpler not to have one.  Brownstein
explained that the reason why he failed to turn over all of his records when they
were first subpoenaed was because at that time, Brownstein was avoiding anything
that could be a conflict, including requesting money from his friends.  He did not
want to take any affirmative action, even though he knew that by not acting, the
consequences would be far worse.  Brownstein further asserted that he believed
this was the same reason why he failed to file his tax returns—he was not
emotionally ready to sit down and think about those matters.
- 11 -

At the time the misconduct began, Brownstein was grossing up to $20,000 to
$25,000 a month.  In fact, a couple of years before, Brownstein made up to
approximately $600,000 a year on several occasions.  This income subsequently
dropped to $150,000.  Brownstein explained that even though he was in a deep
depression, he was still able to make a relatively high salary because he did a lot of
nominal work for one client that did not take a lot of concentration.  In addition,
based on his good reputation in the community, he also had referrals on a regular
basis.  He later learned, however, that because he was not getting all this work
done, his firm starting pulling work from him.
Brownstein asserted that at the time of the hearing, he was feeling much
better, although he recognized that he was still not completely himself.   He was
now taking medication and saw a professional once a week.  Brownstein expressed
his remorse, telling the referee that he felt as bad as one could feel because he
knew that he had let down his family, his good friends who referred cases to him,
and the Bar as a whole.  Brownstein did not believe that this type of misconduct
would occur in the future because he was better able to recognize the problem and
he would not avoid treatment.  At the same time, he also admitted that he needed
more treatment before he could begin to practice law again.
The referee issued a written recommendation and report which found
Brownstein guilty of the following rule violations: rule 4-8.4(c) (a lawyer shall not
- 12 -

engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and
rule 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) of the Rules of
Professional Conduct; and rule 5-1.1(a) (Nature of Money or Property Entrusted to
Attorney); rule 5-1.1(b) (Application of Trust Funds or Property to Specific
Purpose); rule 5-1.1(e) (Notice of Receipt of Trust Funds; Delivery; Accounting);
rule 5-1.1 (f) (Disputed Ownership of Trust Funds); rule 5-1.2(b) (Minimum Trust
Accounting Records); rule 5-1 (Minimum Trust Accounting Procedures); and rule
5-1.2(d) (Record Retention) of the Rules Regulating Trust Accounts.  The referee
found two aggravating circumstances: a pattern of misconduct and multiple
offenses.  She found ten mitigating circumstances: an absence of a prior
disciplinary record; an absence of a dishonest or selfish motive; timely good faith
effort to rectify the consequences of the misconduct; full and free disclosure to the
disciplinary board and a cooperative attitude towards the proceeding; an otherwise
good reputation and character; mental impairment; interim rehabilitation; the
imposition of other penalties and sanctions; remorse; and FLA supervision.  The
referee then recommended a three-year suspension, to be followed by five years of
probation with numerous conditions.
The Bar challenges this recommendation, asserting that the referee erred as
to certain findings in aggravation and erred in recommending a suspension.
- 13 -

Particularly, the Bar challenges whether the referee erred in failing to find three
aggravating factors: a dishonest or selfish motive; a bad-faith obstruction of the
disciplinary proceedings by intentionally failing to comply with rules or orders of
the disciplinary agency; and substantial experience in the practice of law.1   We
agree with the Bar.
First, the referee did not find that Brownstein had a dishonest or selfish
motive and, to the contrary, found that Brownstein’s lack of dishonest motive was
a mitigator.  We disagree with the referee’s conclusion.  In this case, the factual
underpinnings of this claim were uncontested.  Accordingly, this Court is faced
with only one question: whether the unchallenged facts support the referee’s legal
conclusion relative to a selfish motive.   While this 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.”
Fla. Bar v. Pape, 918 So. 2d 240, 243 (Fla. 2005), cert. denied, 126 S. Ct. 1632
(2006).
1.   The Bar further asserts that the referee made additional errors in her
findings of fact relating to the other aggravating circumstances.  For example, the
Bar alleged that the Court should consider as additional aggravation that
Brownstein failed to file his personal income tax return and failed to pay his
secretary’s withholding taxes.  These allegations, however, were not charged in the
case and are not considered by the Court.   If there are later charges by the Bar
relevant to this alleged misconduct, the Court will consider such acts at that time.
- 14 -

The underlying acts supporting this aggravator are that Brownstein used
funds in a trust account for his own personal use and then lied about it.  When he
was confronted by the trustee about the missing trust funds, Brownstein lied and
told the trustee that he had not yet received the money, knowing at the time that
this statement was dishonest and that he had already used those funds.  Brownstein
also wrote checks between his two accounts, knowing that he did not have the
money to cover the checks.  Brownstein defends his conduct by asserting that his
depression affected his decision-making.  While this may be a mitigating factor as
to the appropriate discipline, it does not change the fact that Brownstein knowingly
acted in a dishonest manner by taking money entrusted to him and lying about his
actions to the trustee.  Accordingly, we find that the referee erred with regard to
this aggravator.
The Bar also asserts that the referee erred in failing to find the aggravating
circumstance relative to whether Brownstein obstructed the disciplinary
proceedings by intentionally failing to comply with rules or orders of the
disciplinary agency.   We agree with the Bar.  Again, the facts are undisputed:
Brownstein completely failed to produce any records for the Bar during the entire
proceeding.  Brownstein asserts that he did not comply because when the records
were first subpoenaed, he was at the height of his depression and was unable to
comply.  Accepting that he was clinically depressed when the subpoena was first
- 15 -

issued, Brownstein’s depression did not extend through the entire period in
question so as to excuse his noncompliance with the process.   After the Bar began
its investigation, Brownstein sought help and began recovering from his depressive
episode.  Despite his recovery, to this date, he has not produced the necessary
records for the Bar and admits that he failed to keep necessary records, including
the required client ledgers.  As the Bar’s auditor testified during the evidentiary
hearing, it was extremely difficult, if not impossible, to determine the extent of
Brownstein’s misconduct based on the lack of records.  When questioned about the
misappropriation, Brownstein was unable to state how many times he
misappropriated funds.  Brownstein’s failure to maintain appropriate records does
not excuse his complete disregard of a valid subpoena.  We require members of the
Florida Bar to comply with rule 5-1.2 (Trust Accounting Records and Procedures)
of the Rules Regulating the Florida Bar, and we sanction noncompliance.  See Fla.
Bar v. Davis, 577 So. 2d 1314 (Fla. 1991) (imposing a ninety-day suspension for
failing to maintain the minimum trust account records relating to a transaction
where attorney was clearly handling funds that a client had entrusted to the
attorney).  Accordingly, we hold that the referee should have found that this
aggravating circumstance applied.
Third, we find that the referee erred in failing to find the “substantial
experience in the practice of law” aggravator.  In this case, Brownstein had
- 16 -

practiced law for thirty-one years.  The referee, however, did not mention this
aggravating circumstance at all.  Accordingly, the referee should have applied the
aggravating factor set forth in standard 9.22(i) (substantial experience in the
practice of law) of the Florida Standards for Imposing Lawyer Sanctions.
The final issue we must address is whether the referee erred in her
recommendation of a three-year suspension.  As this Court has held:
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. Const.  However, this Court will
not generally 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.
Fla. Bar v. Heptner, 887 So. 2d 1036, 1041-42 (Fla. 2004).  We have repeatedly
recognized not only the seriousness of the offense in respect to the individual client
but also the extreme detriment to the public’s confidence in the members of the
Bar when a lawyer intentionally takes funds held in trust for the lawyer’s own use.
Such misconduct necessarily must result in the severest of sanctions.  Under both
the Florida Standards for Imposing Lawyer Sanctions and under existing caselaw,
disbarment is presumed to be the appropriate sanction.  See Fla. Stds. Imposing
Law. Sancs. 4.11; Fla. Bar v. McFall, 863 So. 2d 303, 308 (Fla. 2003); Fla. Bar v.
Travis, 765 So. 2d 689, 691 (Fla. 2000); Fla. Bar v. Tillman, 682 So. 2d 542, 543
(Fla. 1996).  In limited instances, we have allowed this presumption to be rebutted
- 17 -

but only by showing substantial mitigating circumstances which demonstrate that
the presumed sanction of disbarment would be unfair and inappropriate in a
particular case.  See, e.g., McFall, 863 So. 2d at 303; Fla. Bar v. Tauler, 775 So. 2d
944 (Fla. 2000).  We do not find in this case that the referee’s recommending less
than the presumed sanction of disbarment has a reasonable basis in existing
caselaw and the Florida Standards for Imposing Lawyer Sanctions.
Brownstein asserts that under our caselaw a lesser sanction is warranted in
his case because of the severe depression which interfered with his ability to make
ethical judgments and that this was completely out of character for him.  Moreover,
he contends that his misconduct did not harm any client, law firm, or financial
institution.  We do not agree.  Based upon our review, we find that the cases which
have approved a sanction less than disbarment for misappropriation of client trust
funds were based either upon less culpability in the taking of the funds2 or
substantially more mitigation.3
Brownstein has been a successful lawyer who received very substantial
financial benefits from the practice of law involving sophisticated legal services.
2.   See Fla. Bar v. Mason, 826 So. 2d 985 (Fla. 2002) (misappropriation due
to accounting error).
3.   See, e.g., Tauler, 775 So. 2d at 947-48 (husband’s operations had caused
loss of his medical practice, bankruptcy, and loss of family home, resulting in a
period of emotional distress); McFall, 863 So. 2d at 308 (during period of
misappropriation, attorney was in extreme pain due to neuropathy and prescribed
medication clouded his judgment).
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Yet, during this time, he misappropriated his clients’ money and breached their
trust.  We recognize that Brownstein and Dr. Eustace testified that during this
period of time, Brownstein suffered from clinical depression.  We accept the
referee’s finding that Brownstein’s depression was established as a mitigating
factor.  However, we find it significant that Brownstein did not seek medical or
psychological care until after the Bar’s investigation began.  Unlike the facts in
McFall, when Brownstein took money from the trust account, he was not on
medication that clouded his judgment.  Further, after he saw Dr. Eustace and began
to take medication, Brownstein still did not undertake to provide the Bar with the
subpoenaed records, cooperate with the Bar in reconstructing records, or rectify his
wrongful acts of failing to pay his secretary’s withholding taxes and payroll taxes
or his own back taxes.
As we have repeatedly stated, disbarment is the presumed sanction for the
misappropriation of client funds, and the presumption will be overcome only in
unique circumstances.  This case involves five substantial aggravators: (1) a
dishonest or selfish motive; (2) bad faith obstruction of the disciplinary
proceedings; (3) substantial experience in the practice of law; (4) multiple
offenses; and (5) a pattern of misconduct.  In contrast to this weighty aggravation,
eight mitigators circumstances are present: (1) an absence of a prior disciplinary
record; (2) timely good-faith effort to rectify consequences of misconduct; (3)
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otherwise good reputation and character; (4) mental impairment; (5) interim
rehabilitation; (6) imposition of other penalties and sanctions; (7) remorse; and (8)
FLA supervision.  While we acknowledge the referee’s findings regarding the
mental depression suffered by Brownstein, we find that the mitigation is
insufficient to overcome the presumption of disbarment based upon our caselaw.
As we do not find Brownstein has overcome the presumption, we conclude that the
appropriate discipline in this case is disbarment.
Based on the above, we approve the referee’s findings of fact and
recommendations as to guilt.   However, as noted above, we reject certain findings
pertaining to the aggravating and mitigating circumstances, and further reject the
recommended discipline.  For the reasons addressed above, we find that the
mitigation in this case does not outweigh the seriousness of the offenses and
instead order disbarment.  Accordingly, Brownstein is hereby disbarred for a
period of five years, effective nunc pro tunc, November 8, 2004, the effective date
of the suspension in Florida Bar v. Brownstein, 888 So. 2d 623 (Fla. 2004) (table).
Because Brownstein has been suspended since November 8, 2004, it is
unnecessary to provide him with thirty days to close out his practice of law to
protect the interests of existing clients.
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Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Steven Ray
Brownstein in the amount of $11,625.16, for which sum let execution issue.
It is so ordered.
WELLS, PARIENTE, QUINCE, and BELL, JJ., concur.
ANSTEAD, J., concurs in part and dissents in part with an opinion, in which
CANTERO, J., concurs.
LEWIS, C.J., recused.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS DISBARMENT.
ANSTEAD, J., concurring in part and dissenting in part.
I disagree with the majority only with respect to its rejection of the discipline
recommended by the referee.  Primarily because of the mental health issues
involved, I would approve the referee’s recommendation of a lengthy suspension
followed by an extended term of probation.
CANTERO, J., concurs.
Original Proceeding - The Florida Bar
John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Director
of Lawyer Regulation, The Florida Bar, Tallahassee, Florida, and Carlos Alberto
Leon, Bar Counsel, The Florida Bar, Miami, Florida,
for Complainant
Richard Baron of Baron and Associates, Miami, Florida,
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for Respondent
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Download sc04-2460.pdf