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IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Case No.: SC05-1149


L.T. Case No.: 2004-10,132(6A)
Complainant

v.

MARK A. AIIAMS,

Respondent. 1

RESPONDENT'S RENEWED MOTION TO


ENFORCE DUTIES OF CLERK AND TO REQUIRE
COMPLIANCE WITH THE RULES OF PROCEDURE
APPLICABLE TO THIS DISCIPLINARY PROCEEDING

COMES NOW, the Respondent, MARK A. AIIAMS, Esquire and files the

Respondent's Renewed Motion to Enforce Duties of Clerk and to Require

Compliance with the Rules of Procedure Applicable to this Disciplinary

Proceeding showing:

Statement of Facts

1. On February 15,2006, the Report of Referee (hereinafter referred to as the

Report) was entered and served via U.S. Mail to the Respondent.

2. On April 21,2006, the Respondent filed the Respondent's Petition for

Review of Report of Referee (hereinafter referred to as the Respondent's

Petition for Review). This petition commenced the proceedings for review
of the disciplinary proceedings in this action pursuant to Rule 3-7.7(c)(l) of

the Rules Regulating the Florida Bar.

3. On May 1,2006, the Respondent served his Directions to the Clerk and sent

a letter to Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar,

requesting preparation of the index to the record of the proceedings before

the referee, requesting incorporation in the record and its index of the

documents requested in the Directions to the Clerk, requesting service of

copies of all documents which have been filed in this action by counsel for

the Florida Bar that have not been previously senred, and indicating that an

extension of time would be requested to allow thirty days to prepare the

Respondent's brief once the index was served. Please see the Respondent's

Directions to the Clerk in Appendix A and the Respondent's letter to Ms.

Thompson in Appendix B.

4. On May 15,2006, the Florida Bar filed the letter from Jodi A. Thompson,

Assistant Staff Counsel for the Florida Bar, to the Respondent as its response

to the Respondent's Directions to the Clerk. Please see Appendix C. Ms.

Thompson's letter states, "the Bar Rules do not require the record of

proceedings to be numbered." However, Ms. Thompson provides no

citation to authority to support this position. In addition, Ms. Thompson's


letter states that Judge Holder did not transmit the record to the Bar and that

the Respondent should contact the Clerk of this Court regarding the record.

5. On May 15,2006, the Respondent's Motion to Enforce Duties of Clerk and

Motion to Enlarge Page Limits of Brief were filed with the Clerk of this

Court, and on May 16,2006, the Clerk of this Court issued an order denying

the same without any response to the same being filed by the Florida Bar.

6. As a result of the unusual nature and rapidity of the foregoing decision and

the Respondent's previous experiences with the Clerk of the Second District

Court of Appeal of Florida issuing orders without the concurrence of two

judges as required by Article V, 5 4(a) of the Constitution of the State of

Florida and Florida Rule of Judicial Administration 2.040(a)(l),' the

Respondent visited the office of the Clerk of this Court to review this case

file on June 14,2006, and when the Clerk refused to allow the Respondent

to inspect the justices' notes in the red folder in this case file, the

Respondent filed a letter requesting that he be allowed to inspect the entire

case file.

7. On June 14,2006, the Respondent found that the case file provided for

review by the Clerk of this Court did not contain all of the documents

' The Clerk of the Second District Court of Appeal of Florida has also issued an
order concerning the Respondent which was contrary to the judges' directions as
shown by the exhibits filed in this action.
required to be included in it by Rule 3-7.6(n)(2) of the Rules Regulating the

Florida Bar. Specifically, the Respondent found that this case file did not

include the transcripts of the trial and the sentencing hearing, the motions

filed in the proceeding before the referee, orders relating to such motions,

and exhibits filed by the Respondent. As a result, the Respondent served the

Respondent's Motion to Require Compliance with Rule 3-7.6 on June 14,

2006 which was received for filing by the Clerk of this Court on June 19,

2006, and the Clerk of this Court issued an order denying the same on

August 23,2006.

8. On June 21,2006, an Amicus Motion to Inspect the Complete Case File was

filed by Gordon Wayne Watts, and the Clerk of this Court issued an order

denying the same on August 23,2006.

9. On or about July 7,2006, the Clerk of this Court sent a letter to the

Respondent denying the Respondent's request to inspect the justices' notes

in the red folder in this case file and explaining that some of the records

which were missing from this case file were stored in an exhibit room in the

sub-basement of this Court. Please see a copy of the Clerk's letter dated

July 7,2006 with the envelope transmitting the same to the Respondent

bearing a postmark of July 11,2006 in Appendix D.


Legal Argument

Due process requires preparation of the record

in compliance with Florida Rule of Appellate Procedure 9.200.

10. Rule 3-7.7 of the Rules Regulating the Florida Bar provides the procedure

for review of reports and judgments entered by a referee in disciplinary

proceedings, and Rule 3-7.6 provides the procedure for disciplinary

proceedings before a referee.

11. Pursuant to Rule 3-7.7(f) of the Rules Regulating the Florida Bar, the

Florida Rules of Appellate Procedure apply to petitions for review of

disciplinary proceedings before the Supreme Court of Florida.

12. The Respondent has not found and the Florida Bar has not cited any

provision of the Rules Regulating the Florida Bar that provides for any other

way in which to refer to the record in the Respondent's brief in support of

his petition for review other than by citation to the appropriate page numbers

in the record as required in Florida Rule of Appellate Procedure 9.210(b).

Of course, to do so, the record must be prepared as required by Florida Rule

of Appellate Procedure 9.200, and the Respondent has not found nor has the

Florida Bar cited any provision in the Rules Regulating the Florida Bar

which provides that the record is not required to be prepared in accordance


with Florida Rule of Appellate Procedure 9.200 or that this rule does not

apply to this Court's review of disciplinary proceedings.

13. Florida Rule of Appellate Procedure 9.200(f)(2) states, "If the court finds the

record is incomplete, it shall direct a party to supply the omitted parts of the

record. No proceeding shall be determined, because of an incomplete

record, until an opportunity to supplement the record has been given." The

comment concerning subdivision (f) states, "The new rule is intended to

ensure that appellate proceedings will be decided on their merits.. .. 3,

14. At the time that this proceeding was commenced and was tried, the pertinent

part of Rule 3-7.6(m)(2) stated, "The referee shall serve a copy of the record

on bar counsel with the report. Bar counsel will make a copy of the record,

as firmished, available to other parties on request and payment of the actual

costs of reproduction." Thereafter, Rule 3-7.6(m)(2) was amended to delete

the requirement that the referee serve a copy of the record on bar counsel,

but the Rules Regulating the Florida Bar have not been amended to exempt

these proceedings from compliance with Florida Rules of Appellate

Procedure 9.200 or 9.210. However, amendments to rules of procedure have

prospective effect only, absent an express statement to the contrary. State v.

Green, 473 So.2d 823,824 (Fla. 2d DCA 1985) citing Poynh v. Reynolds,

19 So. 649 (Fla. 1896). Therefore, the referee should have transmitted a
complete copy of the record to the Florida Bar; however, the referee failed to

do so as shown by the letter from Jodi A. Thompson, Assistant Staff

Counsel for the Florida Bar,to the Respondent dated May 2,2006 which

was filed with the Clerk of this Court on May 15,2006. Please see

Appendix C.

15. Rule 3-7.6(n)(2) of the Rules Regulating the Florida Bar states, "The record

shall include all items properly filed in the cause including pleadings,

recorded testimony, if transcribed, exhibits in evidence, and the report of the

referee."

16. Due process requires a complete record on appeal. See, e.g., ?'hornas v.

State, 828 So.2d 456,457 (Fla. 4th DCA 2002) and Berube v. State, 771

So.2d 1263 (Fla. 2d DCA 2000).

17. "An accurate and comprehensive record of the proceedings below is

absolutely essential to fair and efficient appellate review." Haist v. Scarp,

366 So.2d 402,404 (Fla. 1978). "This Court should provide every incentive

to parties to develop and preserve an adequate record." Id.

18. "All rules prescribed for court procedure are binding on the court and its

clerk as well as on litigants and their counsel." Esch v. Forster, 127 So. 336,

336 (Fla. 1930). "The burden of proving that observance of the rules of

practice has been waived is upon the party claiming the waiver." Id at 337.
19. "A duty evolves upon the attorneys for both appellant and appellee to see to

it that a record is sent here which can be used with a minimum of time loss."

Lithgow Funeral Centers v. LoJiin, 60 So.2d 745,746 (Fla. 1952).

20. The letter from the Clerk of this Court to the Respondent filed in this case

and included in Appendix D shows that some documents are in an exhibit

room rather than being included in the case file and that this was not brought

to the Respondent's attention until almost a month after he drove for over

ten hours in order to review this case file.

21. The Respondent's Directions to the Clerk lists the items that the Respondent

believes are necessary to address all of the issues raised in the Respondent's

Petition for Review. The letter from the Clerk of this Court does not state

whether each of the documents specified in the Directions to the Clerk

which are not in the case file are in the exhibit room. As a result, it is not

even clear whether the complete record has been transmitted to this Court.

22. If the referee had complied with the applicable version of Rule 3-7.6(m)(2)

by transmitting a complete copy of the record to the Florida Bar, the

Respondent could have reviewed the record in its Tampa office and the Bar

could have prepared an index to the record.

23. However, rather than comply with its duty to see that the record is complete

and indexed in a timely manner, the Florida Bar has opposed preparation of
the record without citation to any legal authority to support its position.

Instead, the Florida Bar has taken the position that the rules do not require

the record to be numbered without citation to any authority, and therefore, it

follows that the Florida Bar believes that the parties are not required to cite

to the pertinent pages of the record as required by Florida Rule of Appellate

Procedure 9.210(b). However, if this were correct, it would seem to make

this Court's consideration of this proceeding very difficult. See, Harford v.

Travelers, 531 So.2d 1049 (Fla. 1st DCA 1988). Of course, the parties

could just refer to the documents and their page numbers, but this method is

not authorized by Rule 3-7.7 either.

In addition, the Florida Bar has used the Respondent's requests to ensure

that the record is complete as a basis to repeatedly seek dismissal of the

Respondent's Petition for Review even though such review is required by

Rule 3-7.7(a)(2) which states, "The Supreme Court of Florida shall review

all reports and judgments of referees recommending probation, public

reprimand, suspension, disbarment, or resignation pending disciplinary

proceedings." Therefore, it seems that the Florida Bar may have taken this

unsupported position regarding preparation of the record in this action in


order to curtail the ability of the Respondent to defend himself in this action

and to deny the Respondent due process.2

25. In order to ensure that this Court's review of this case comports with the

dictates of due process, this Court should follow the aforementioned rules of

procedure and require its Clerk or the Florida Bar to prepare an index of the

record and require inclusion of the documents requested in the Respondent's

Directions to the Clerk in the record so that the parties and this Court can be

assured that the record is complete, and if the foregoing shows that the

record is not complete, this Court should allow the parties to supplement the

record to ensure that this proceeding is determined on its merits. In the

alternative, this Court could take advantage of this opportunity to provide

the Florida Bar with an incentive to comply with its duty to abide by the

rules of procedure applicable to disciplinary actions as required by the

dictates of due process by dismissing this disciplinary action, and such a

decision would go a long way towards restoring a standard of

2
The Florida Bar previously filed a Petition for Interim Suspension in this action
without any legal basis and without even meeting the minimum requirements for a
petition for an emergency suspension, and on May 16,2006, this Court denied the
Florida Bar's Petition for Interim Suspension. Therefore, it appears that the
Florida Bar has violated the procedures established for due process in disciplinary
proceedings before this Court on at least one previous occasion in this action in
order to make it more difficult for the Respondent to defend himself and to deny
due process to the Respondent.
professionalism and integrity in those who run the Florida Bar which so

many of its members and the public find lacking.

WHEREFORE, the Respondent respectfully requests that this Court issue

an order requiring the Clerk of this Court or the Florida Bar to prepare the record

in compliance with rules of procedure established by this Court for disciplinary

proceedings and the Respondent's Directions to the Clerk, requiring the Florida

Bar to assist the Clerk in preparing the record, and allowing the Respondent to

supplement the record if the foregoing shows that it is incomplete before being

required to file his brief in support of his Petition for Review, or in the alternative,

give the Florida Bar an incentive to abide by the rules applicable to disciplinary

proceedings in the future by issuing an order dismissing this disciplinary action

due to the Florida Bar's repeated efforts to obstruct preparation of the record in this

action, the Florida Bar's repeated efforts to deny due process to the Respondent in

this action, the Florida Bar's repeated efforts to mislead this Court in this action,

and the referee's failure to comply with Rule 3-7.6(m)(2) of the Rules Regulating

the Florida Bar in this action.

Respectfully Submitted,

Mark A. Adams, Esquire


Fla. Bar No. 0193178
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been served by U.S. Mail to

Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar at 5521 W. Spruce

Street, Suite C49; Tampa, FL 33607, to Staff Counsel for the Florida Bar at 65 1 E.

-
Jefferson Street; Tallahassee, Florida 32399, and to Mr. Gordon W. Watts, pro se
44%
Amicus Curiae, at 821 Alicia Road; Lakeland, FL 33801 on this / 4 day of

September, 2006.

Mark A. Adams, Esquire


Fla. Bar No. 0193 178

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this document complies with the requirements of

Florida Rule of Appellate Procedure 9.210(a)(2).

a a r k A. Adarns, Esquire
Fla. BarNo. 0193178
P.O. Box 1078
Valrico, FL 33595
Telephone: 8 13-654-1235
Facsimile: 813-654-1390
IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Case No.: SC05-1149


L.T. Case No.: 2004-10,132(6A)
Complainant

MARK A. ADAMS,

Respondent. 1

RESPONDENT'S RENEWED MOTION TO


ENFORCE DUTIES OF CLERK AND TO REQUIRE
COMPLIANCE WITH THE RULES OF PROCEDURE
APPLICABLE TO THIS DISCIPLINARY PROCEEDING

APPENDIX

TABLE OF CONTENTS
Document Tab

Respondent's Directions to the Clerk A

Respondent's Letter to Jodi A. Thompson, Assistant Staff Counsel B

Letter from Jodi A. Thompson, Assistant Staff Counsel, to the Respondent C

Letter kom the Clerk of this Court to Respondent D


Appendix A
TEE FLORIDA BAR, Case No.: 335-1149
L.T. Case No.: 2004-1Q,132(6A)
Complainant

V.

MARK A. ADAMS,

Respondent. /

DmCTIONS TO THE C L E W

Pu~suantto Rules 3-7.7(c)(2) and 40 and Florida Rule or Appellate

Procedure 9.200(a)(I), the Respondent directs the Clerk of the Florida Supreme

Court lo include the following docrrments and exhibits in the record on appeal in

tl~iscase and to serve an index of the record to the Responde~leand Staff Counsel

for the Flwida War:

I. The Respondent directs the clerk to include all of the materials listed in Rule

9.20O(a)(l).

2. Additionally, the Respondent directs the clerk to include the folIswing

items:

A. All notices of taking deposition filed in this action.

B.A11 ccpmspondence msmiEed to the Referee by counsel for tile Florida


Bar and the Respondent.

C. All notices of hearing filed in this iachorm.


D. The transcripts of at! hearings held in tilis action.

E. A11 witness lists filed in this action.

F. All cxbibit Lists filed in this action.

3. Pursuant to Rule 3-7 6(h)(5)(B), after appointment of the Referee all

documents should have been filed with the Referee.

4. Pursuant to Rule 3-7.6(rn)(2), the Referee should have provided a conlplcte

copy of the entire record of the proceedings before the Referee to Bar

Counsel, and Bar Counsel is required to make the complete record available

to ihe Respondent upon request. However, Rule 3-7.6 does not claipr-ifS,

whether thc Referee or Bar Counsel is responsible for prepwing the record

pursuant to Florida Rule of Appellate Procedure 9.200(d).

5. Pursuant to the Report oEReferee dated February 15,2006, it appears that

the Referee has transmitted the complete record to the Clerk of the Supreme

Court of Florida.

6. Florida Rule of Appellate Procedure 9.2 10(b) requires references to the

appropriate pages of the record.

7. Piirseant to Rule 3-7.7(f), the Florid-ndaRules of Appellate Procedure apply to

petitions for review of discipiinany proceedings before the Supreme Court of

Florida, and Rule 3-7.7 does not provide for any o h e way
~ in which to refer
to the record in the Respondent's brief in support of his petition for review

other than that specified in Rule 9.2 10(b).

8. The Respondent attempted to speak with Jodi A. Thompson, Assistant Staff

Counsel for thc Florida Bar, to find out whether the Referee or the Bar had

prepared the record as required by Florida Rule of Appellate P ~ Q c ~ ~ u F ~

9.200(d), and the Respoildent left a detailed message for Ms. Thompson

regarding this matter. However, the Respondent has not heard back -From

Ms. Thompson or anyone else fimn the Florida Bar, and therefot-e, out of an

abundance of caution, rhe Respondent is filing these Directions to the Clel-k.

9. These Directions to the Clerk have been timely served pursuant to Rule

9.2QO(b)(l) within I Q days of filing the Respondent's Petition for Review of

Report of Referee.

CERTBFECATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been served by U.S. Maii to

Jodi A. Thompson, Assistasd StaffCounsel for the Florida Bar ah 5521 W. Spruce

Street, Suite C49; Tampa, FL 33607 and to StaffCounsel for the FIorida Bar at 651
4-
E. JeiTerson Street; Tallahassee, Florida 32339 on this J day of May, 2006.
+
'-
-

I 6 v

Mark A. Adarns, Esquire


Fla. Bar No. 0 193 178
T HEREBY CERTIFY that this document complies with the ~e-equirenneilts
of

Florida Rule of Appellate Procedure 9.210(&)(2).

/.;.:-,&L--
Mark A. A d m s , Esquire
Fla. Bas 1-Jo. O 193I 78
P.0. Box I078
Valrico, FL 33595
Telephone: 8 13-654-1235
Facsimile: 8 13-654- I390
Appendix B
Attorney and MBA
Mailing Address Teiephooe (8 13) 654-1235 Harbor lsiland Bmee
P.O. Box 1078 Facsimile (8 13) 654-1390 6 10 Garrison Cove Lane
Valrico, F1. 33595 Tampa, Fiorida

May 1,2006

Jodi A. Thompson, Assistant Staff Counsel


The Florida Bar, Tampa Office
5521 W. Spruce Street Suite C49
Tanlpa FL 33607

Re: The Florida Bar v. Adams


Case No.: SC05- I 149
L.T. Case No.: 2004-10.132(6A)

Dear Ms. Thompson:

I have transmitted the Directions to the Clerk for preparation of the record to the Clerk of the
Florida Supreme Court. A copy is enclosed. If either the Referee or the Florida Bar has
prepared the record as required by Florida Rule of Appeilatc Procedure 9.200,please scrve the
index to the record to nle. Also, please serve me with copies of all docunients which have heen
filed in this action by counsel for the Florida Bar that have not been previously served to me. In
addition, if any of the documents listed in the Directions to the Clerk have not previousiy been
incorporated into the record and its index, please include these additional docunlents in the
record and its index.

As it appears that the record has riot been prepared as required by 9.200 and as I have not
received an index to the record, I will file a motion to direel the clerk, the Florida Bar, or the
Referee to prepare and transmit the record pursuant to the Directions to the Clerk and seek
service of the index and all documents filed with the Referee by the Florida Bar that were not
served to me. I will seek a thirty day extension of the deadline to file my brief in support of my
petition for review beginning from the date that the index to the record is served to me.

Please review this matter and let me know the status of the record and whether or llor the Florida
Bar opposes the relief that I am requesting by 1 :00 PM on Friday, May 5,2006. Thank you for
your pronlpt attention to this matter and your consideration.

Sincerely,

Mark A. Adams, Esquire

CC: Stnfrcounse! for the Florida Bar


Appendix C
May 2,2006

Mark A. Adalns
Post Ofiice Box 1078
Valrico, Flotida 33595

Re: T!le Fiorida Bar 1,. Mark A. .4dams


Case No.: SC05-1149
Dear Mr. Adarns:

This letter is in response to your voicemail message regarding the record of proceedings in the
above referenced case.

Judge Holder did not transmit thc record of proceedings to The Flotida Bar. Rule 3-7.6
(1n)(2)(Filings.), as amended, no longer rcquires the referee to serve a wpy o r the record of
proceedings on Bar counsel. Also, the Bar rules do not require the record of proceedings lo be
numbered.

1 noted in your petition for review that you alleged that you were not provided with copies of all
documen1s filed with the referee. I have reviewed ~ n file
y w d it reflects that a copy of all
pleadings, transcripts, and the affidavit of costs were provided to you. I did not file any receipts
or supporting docurnentation of the costs reflected in the affidavit of costs, nor is it customary or
a requirement to do so.

You should contact the Clerk of the Court regarding any questions you have regarding thc record
of proceedings.

Finally, I will be handling your case on appeal. Please serve copies of all pleadings to me at the
address above and to Tony Boggs in Tallahassee. You do not need to serve Lou Kwall.

k'.
Jo I A Tl~onipson
Assistant Staff Coutisel
I ATlra
Enclosures: Rulc 3-7.6 (Procedures Before a Referee)
Appendix D
ataprtme Eogtl a%$loir&Ba
Office o f the C!uk
500 South Duvai Street
Tallahassee, Florida 323W-1925

Mark A. Adans, Elsrjuircs


Post Office Box 10'78
Valrico. Florida 33595

Ke: PnulslicRecc.rd,s Keq?x&stbated June 14,2006, Case No. SC::=OJ-! 149


iaspection Ff court 51es on h e 14,2005

Deer Mr. Adams:

In response to your request dated June 14,2806,. -please be advised that iktc
rccorcts you are requesti~gare ee?reml>tfrom dlsciosurk-:as a public record pursuaiar
to rt'itle 2.051(~];)(1)oC?heRules o f Judicial Administmfion, Your request i s denied.

Addi-'iorxlfy, please be advised that when yoia visited this Court 0x1 Jun: 14,
2006, you did not vie-w the enti~econtents of the record in the possession o f tkis
C:ourL. In addition to the c u e file which you viewed, we are afsa in possession isf a
box of record which includes the foliowing: Hoiders ofpizadings filed before the
referee which includes 1 volume transcfipt of the pre-trial hearing held 1 1/22/05; 5
faldess of exlribtts, I of which i s r ~ ~ ~ r ''Defendant%
ked 2 folders of final
exhibitsgq;
hearing traa:jc~ptswhich ii-rciudcs Volume h Final Heailng heId i2/iiQS,Volume
I? Final B3earing held 32/li05, Voihime 191 Final Ibeakng held 122105, and i
-volume transc~ptof final heafing on sanctions held 2!3/06. Please be advised that
ail ofthe above Eisted t~znsclP;ptsare originals and that this box is Iloused in the
secure exbibit raonr in the sub-basemen?ofthe Court until the case is sent t.0 the
Court for consideratlopl. Because oftbat the d e p ~ t yclefl who was dealing with
yotir request at the counkr insnclvex$entiy ailed to make those mate~atalsavailabii; ro
Mark A, Adms. Esquire
Silly 7,2086
Page: 2

yoti. Shotlid yoii wish to persotrally inspect the contents oE this box, please cali tile
C2er:rk9sOffice the box will be retrieved for y a . ~baf~reyoilr anivai. If there is
anything you know you specifica$lywish to see, please let me know and Y wiii
rsr~kiceaRaangeinkntsto have i t copied fbr; you.

.
PC' Jodi Anderson Thompson. Esquire
Kenneth L.awrence, Marvin, Esquire