IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, Case No. 96-30,098 (18C) ve HENRY J. MARTOCCI, Respondent . COMPLAINT The Florida Bar, complainant, files this Complaint against HENRY J. MARTOCCI, respondent, pursuant to the Rules Regulating The Florida Bar and alleges: 1. The respondent, Henry J. Martocci, is and at all times hereinafter mentioned, was a member of The Florida Bar, subject to the jurisdiction of the Supreme Court of Florida and the Rules Regulating The Florida Bar. 2. The respondent resided and practiced law in Brevard County, Florida, at all times material. 3. In April, 1995, the respondent represented the former 1 PUBLIC RECORDwife in Newman v. Newman, Case No. 90-02457-FD-J, Eighteenth Judicial Circuit, Brevard County, Florida, concerning child custody and support issues. Attorney J. Scott Lanford represented the former husband. 4. Mr, Lanford scheduled the deposition of Dr. Bonnie Slade, Ph.D., a licensed psychologist, for April 24, 1995, at Dr. Slade’s office in Palm Bay, Florida, concerning the Newman case. Slade's Both Mr. Lanford and the respondent were present for D: deposition and the respondent's client and her new husband were also in attendance. 5. Dr. Slade’s deposition was reported by Stephanie McGraw, Registered Professional Reporter. Ms. McGraw used stenographic notes and a tape recorder to report Dr. Slade’s deposition which lasted approximately 15 minutes. 6. After Dr. Slade indicated that she had to terminate the deposition, it was determined her deposition would be continued at a later time. Dr. Slade left the room in her office where the deposition was being conducted. At or about that time, Mr Lanford informed the respondent of another deposition of a Dr. a)Whitacre in the Newman case that would be conducted at Mr. Lanford’s office at 6:30 p.m. that same evening. Mr. Lanford and the respondent left the deposition room. 7. Outside the door to the room where the deposition was conducted, the respondent approached Mr. Lanford and uttered an obscenity, “F--- you," or "F - me,” or words to that effect. The respondent also called Mr. Lanford another obscenity, ‘A--hole,” two or three times. Ms. McGraw continued to report this confrontation between the respondent and Mr. Lanford as reflected in the transcript of Dr. Slade’s deposition, beginning at page 17, line 13. A copy of the Dr. Slade’s deposition transcript is attached hereto as Exhibit “A.” 8. The confrontation between the respondent and Mr. Lanford occurred in the hallway of a doctor’s office during a time when patients were being seen and business was being conducted. 9. During the Whitacre deposition taken the evening of April 24, 1995, the respondent objected to Ms. McGraw’s presence as the court reporter. The respondent stated on the record his contention that Ms. McGraw and Mr. Lanford completely fabricateda purported portion of the deposition taken earlier that morning. The respondent further stated on the record that Ms. McGraw had notarized what he believed to be a “partially false and fraudulent transcript of statements never made.” A copy of the excerpt from Dr. Whitacre’s deposition transcript is attached hereto as Exhibit “Bp. 10. Also at the beginning of Dr. Whitacre’s deposition, the respondent stated on the record that he had never made the statement, “F--- You,” or words to that effect, earlier that day. 11. On April 26, 1995, the respondent filed in the Newman case Petitioner’s Supplemental Objections to the Filing or Use the Deposition of Bonnie Slade, Ph.D. In that document, at paragraph four, the respondent stated that a portion of the transcript of the deposition of Bonnie Slade, Ph.D., namely lines 13 through 20 on page 17, was “falsely, fraudulently and maliciously fabricated by the court reporter acting in concert with counsel for the Former Husband." A copy of the respondent's Supplemental Objections is attached hereto is Exhibit “Cc.” 12. Prior to the grievance committee hearing in this matter, 4the respondent denied saying ‘A--hole” to Mr. Lanford on April 24, 1995, although the tape recording made by the court reporter, Stephanie McGraw, reflects the respondent said that word at least twice. The respondent acknowledged that he said “F--- You" to Mr. Lanford. 13. The respondent directed disparaging remarks to opposing counsel in a litigated matter. The respondent made a misrepresentation to the bar when he denied uttering a disparaging remark where an audio device recorded him doing so on two occasions. 14. The respondent accused a court reporter of fabricating a transcript and engaging in an improper notarization. The respondent’s conduct was prejudicial to the administration of justice as his unsubstantiated accusations were rendered in court documents and were intended to disparage or humiliate the court reporter. 15. The respondent accused an attorney of conspiring with a court reporter to fabricate a transcript. The respondent's conduct was prejudicial to the administration of justice as his 5unsubstantiated accusations were rendered in court documents and were intended to disparage or humiliate a fellow member of the bar. 16. By reason of the foregoing, the respondent has violated the following Rules Regulating The Florida Bar: 4-8.4(c) for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and 4-8.4(d) for engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, inclu g, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic. WHEREFORE, The Florida Bar prays the respondent will be appropriately disciplined in accordance with the provisions of the Rules Regulating The Florida Bar as amended.ROBERT M. MOLETTEIRE Chair Eighteenth Judicial Circuit Grievance Committee "Cc" 775 Bast Merritt Island Causeway, Suite 110 Merritt Island, FL 32952 (407) 453-4081 Attorney No. 376469 pate: 4/796 ROSE ANN DIGANGI Bar Counsel ‘The Florida Bar 880 North Orange Avenue Suite 200 Orlando, Florida 32801 (407) 425-5424 Attorney No. 745080 Date: Counsel ‘The Florida Bar 650 Apalachee Parkway Tallahassee, Florida 32399-2300 (904) 561-5600 Attorney No. 217395 and JOHN F. HARKNESS, JR. Executive Director The Florida Bar 650 Apalachee Parkway Tallahassee, Florida 32399-2300 (904) 561-5600 Attorney No. 123390 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served the original of the foregoing Complaint to the Clerk of the Supreme Court of Florida, Supreme Court Building, 500 S. Duval Street, Tallahassee, Florida, .32399-1927; a copy of the foregoing, by certified mail no. P 917 722 971, return receipt requested, on respondent’s counsel, James Dressler, 110 Dixie Lane, Cocoa Beach, Florida, 32931-3542; and a copy of the foregoing by first-class mail to Bar Counsel, The Florida Bar, 880 North Orange Avenue, Suite 200, Orlando, Florida, 22802, on thie Jif day of 7Naq. _, 1996 Staff Counse NOTICE OF TRIAL COUNSEL PLEASE TAKE NOTICE that the trial counsel in this matter is Rose Ann DiGangi, Assistant Staff Counsel, whose address and telephone number are 880 North Orange Avenue, Suite 200, Orlando, Florida, 32801, (407) 425-5424. Respondent need not address pleadings, correspondence, etc. in this matter to anyone other than trial counsel and to John A. Bogus, Director of Lawyer Re tion, The FL x Parkway, Tallahassee Florida, 32399-2300. MANDATORY ANSWER NOTICE RULE 3-7.6(g) (2), RULES OF DIS LINE, EFFECTIVE JULY 1, 1993, PROVIDES THAT A RESPONDENT SHALL ANSWER A COMPLAINT. THE RULE MAY BE FOUND AT PAGE 586 OF THE SEPTEMBER, 1995, FLORIDA BAR JOURNAL.Dec-06-96 11:040 ry e P.03 IN THE SUPREME COURT OF FLORIDA RECEIVED: (Before 2 Referee) DEG ~ 91996 THE FLORIDA BAR, ‘THE FLORIDA BAR vs ORLANDQ Complainant, Case No. 88,180 CTFB Case No. 96-30,098 (18¢)] HENRY J. MARTOCCI, Respondent. I REPORT OF REFEREE Summary of Proceedin Pursuant to the undersigned being Guly appotmted as referee to conduct disctplinary proceedings herein according to the Rules Regulating The Florida Bar, a hearing was held on November 7, 1996. The pleadings, notices, Motions, orders, transcripts and exhibits, all of which are forwarded to The Supreme Court of Florida with this report, constitute the record in this case. The following attorneys appeared as counsel for the parties: For The Florida Bar ~- Frances 2. Brown Eric M. Turner For the Respondent - James &. Oresster Findings of Fact as to Each Item of Misconduct of Which the d Respondent Is Charged: After considering all the pleadings and-evidence Sefore ne, pertinent portions of wnicheace commented on below, I find: 1. Respondent is Fifty-nine (59) years of age. He has been admitted to the practice of law in Florida since 1977 and in New York since 1965. He is a sole practitioner whose practice is fifty percent family law. 2. In April, 1995, the Respondent represented the former wife in Newman v. Newnan, Case No. 90-02457-F0-J, Eighteenth Judicial Circuit, Brevard County, Florida, concerning child custody and support issues. Attorney J. Scott Lanford represented the former husband.