IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court Case Nos.

SC04-2050 and SC05-948
Complainant,

v.

SAUL CIMBLER, The Florida Bar File Nos.

2003-71,385(11E) and
Respondent. 2004-70,368(11H)
_____________________/
______________________________________________

The Florida Bar’s Initial Brief on Appeal

_______________________________________________

BARNABY LEE MIN

Bar Counsel
Florida Bar No. 385719
The Florida Bar
444 Brickell Ave., Suite M-100
Miami, Florida 33131
(305) 377-4445

JOHN ANTHONY BOGGS

Staff Counsel
Florida Bar No. 253847
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399
(850) 561-5839

JOHN F. HARKNESS, JR.

Executive Director
Florida Bar No. 123390
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399
(850) 561-5839
 TABLE OF CONTENTS
PAGE

TABLE OF CONTENTS ................................................................. i

TABLE OF AUTHORITIES ............................................................ ii

SYMBOLS AND REFERENCES..................................................... v

STATEMENT OF THE CASE AND OF THE FACTS ................... 1-8

SUMMARY OF ARGUMENT ......................................................... 9 - 10

ARGUMENT ..................................................................................... 11 - 22

I. THE REFEREE ERRED BY FAILING TO RECOMMEND

DISBARMENT FOR THE RESPONDENT’S
MISCONDUCT………..…………………………………. 11 - 22

CONCLUSION .................................................................................. 23

CERTIFICATE OF SERVICE ........................................................... 25

CERTIFICATE OF TYPE, SIZE, & STYLE……………………….. 25

INDEX TO APPENDIX ……………………………………………. 26

i
 TABLE OF AUTHORITIES

CASES: PAGE

The Florida Bar v. Blunt,

564 So. 2d 129 (Fla. 1990)…………………………… 15

The Florida Bar v. Brown,

905 So. 2d 76 (Fla. 2005) …………………………….. 17

The Florida Bar v. Cimbler,

840 So. 2d 955 (Fla. 2002) …………………………… 16

The Florida Bar v. Cimbler,

Supreme Court Case No. 81, 952 (Fla. 1995) ………... 16

The Florida Bar v. Demarco,

601 So. 2d 1197 (Fla. 1992) ………………………….. 14 - 16

The Florida Bar v. Jones,

571 So. 2d 426 (Fla. 1990) …………………………… 13 - 14

The Florida Bar v. McFall,

863 So. 2d 303 (Fla. 2003) …………………………… 17

The Florida Bar v. Nedick,

603 So. 2d 502 (Fla. 1992) …………………………… 12 - 13

The Florida Bar v. Niles,

644 So. 2d 504 (Fla. 1994) …………………………… 11

The Florida Bar v. Pearce,

631 So. 2d 1092 (Fla. 1994) ………………………….. 18 - 20

The Florida Bar v. Penrose,

413 So. 2d 15 (Fla. 1982) …………………………….. 15

The Florida Bar v. Santiago,

521 So. 2d 1111 (Fla. 1988) ………………………….. 18, 20

ii
The Florida Bar v. Vining,
7 So. 2d 1044 (Fla. 2000) …………………………….. 11, 17

STATUTES:

26 U.S.C.A. 7203 (1990) …………………………………….. 13

OTHER AUTHORITIES:

Rules of Discipline:
3-4.3 …………………………………………………………. 3

3-4.4 …………………………………………………………. 3

3-5.1(g) ………………………………………………………. 4, 7, 11

Rules of Professional Conduct:

4-1.1 ………………………………………………………….. 7

4-1.3 ………………………………………………………….. 7

4-1.4(a) ……………………………………………………….. 7

4-3.3(a) ……………………………………………………….. 7

4-8.4(a) ……………………………………………………….. 3

4-8.4(c) ……………………………………………………….. 7

Florida Standards for Imposing Lawyer Sanctions:

4.41(a) ………………………………………………………… 16 - 17

4.41(b) ………………………………………………………… 16 - 17

4.41(c) ………………………………………………………… 16 - 18

4.42(a) ………………………………………………………… 17

4.42(b) ………………………………………………………… 17

iii
5.11(f) …………………………………………………………. 13 - 14, 16 - 18

5.12 …………………………………………………………… 13, 17

6.11(a) ………………………………………………………… 14, 17 - 18

6.11(b) ………………………………………………………… 14, 16 - 18

6.12 ……………………………………………………………. 17

8.1(a) …………………………………………………………... 14, 17 - 18

8.1(b) …………………………………………………………... 17 - 18

9.22(a) …………………………………………………………. 7, 20

9.22(c) …………………………………………………………. 7, 20

9.22(d) …………………………………………………………. 7

9.22(f) ………………………………………………………….. 7, 21

9.22(g) …………………………………………………………. 7, 21

9.22(i) ………………………………………………………….. 7, 21

9.32(c) …………………………………………………………. 8

9.32(h) …………………………………………………………. 8

iv
 SYMBOLS AND REFERENCES

For the purpose of this Initial Brief on Appeal, The Florida Bar will be

referred to as The Florida Bar, the Bar, or TFB. Saul Cimbler will be referred to as

either the Respondent or R. Other persons will be referred to by their respective

surnames.

References to the transcript of the final hearing will be set forth as T, the

date of the hearing, and page number. References to the Report of Referee will be

set forth as ROR and page number. References to exhibits will be set forth as

either TFB Ex. or R Ex.

v
 STATEMENT OF THE CASE AND OF THE FACTS

On or about October 22, 2004, The Florida Bar filed a complaint against the

Respondent in Supreme Court Case No. SC04-2050, The Florida Bar File No.

2003-71,385(11E). On or about May 27, 2005, The Florida Bar filed a complaint

against the Respondent in Supreme Court Case No. SC05-948, The Florida Bar

File No. 2004-70,368(11H). Judge Paul Siegel was appointed as the Referee to

conduct disciplinary proceedings in both cases. Although never formally

consolidated by either this Court or the Referee, the final hearings in both cases

were conducted at the same time. Additionally, the Referee issued one Report of

Referee addressing both cases. Accordingly, on or about January 30, 2006, The

Florida Bar filed a Motion to Consolidate both cases for the purposes of this

review.

Supreme Court Case No. SC04-2050, The Florida Bar File No. 2003-

71,385(11E) concerned the Respondent’s testimony in the case of United States of

America v. Jose Fernandez, case numbers 02-20177 CR Ungaro-Benages and 02-

20178 CR Ungaro-Benages. (T. 8/30/05 at 3-5; Appendix B). In the Fernandez

case, the Respondent testified that in or about 1991 or 1992, the Respondent was

retained to represent Mr. Willie Falcon and Mr. Salvatore Magluta in federal drug

prosecutions. (ROR at 2; T. 8/30/05 at 3-5; Appendix B at 8). The Respondent

was one of a number of attorneys representing Messrs. Falcon and Magluta from

1
1991 to 1997. (T. 8/30/05 at 3-5; Appendix B). For his services, the Respondent

was paid on an hourly basis at the rate of approximately $150.00 to $160.00 per

hour. (ROR at 3; T. 8/30/05 at 3-5; Appendix B at 26). In total, the Respondent

was paid more than $400,000 to $500,000. (ROR at 3; T. 8/30/05 at 3-5; Appendix

B at 28). The Respondent failed to declare any of this income to the Internal

Revenue Service (hereinafter, “IRS”) until 2001 when he was contacted by the

IRS. (ROR at 3; T. 8/30/05 at 3-5; T. 12/15/05 at 306-07; Appendix B at 30).

The Respondent testified and admitted that he did not pay his income taxes

but argued that he had tax credits which offset any liabilities. (T. 12/15/05 at 289,

291-92). Further, the Respondent claimed that his failure not to file was not

intentional. (T. 12/15/05 at 292, 298). Specifically, the Respondent blamed

depression and an addiction to food for his failure to file his income taxes. (T.

12/15/05 at 292, 298). Although no expert witness was called to testify on the

Respondent’s behalf, the Respondent introduced the Report of Referee from a

previous disciplinary proceeding which discussed the Respondent’s depression.

(T. 12/15/05 at 284-86).

To clarify the area of tax law, the Referee called Charles Ruffner as an

expert witness. (T. 12/12/05 at 5). Mr. Ruffner, an attorney who specialized in

taxation, studied accounting, worked for the IRS, and worked for the Department

of Justice Tax Division, testified that the Respondent had an obligation to report

2
his income to the IRS, regardless of what the Respondent believed were his tax

credits. (T. 12/12/05 at 6-7, 12, 18). Further, Mr. Ruffner testified that the

Respondent’s failure to file income taxes for a number of years was prima facie

evidence of a criminal violation. (T. 12/12/05 at 13, 17).

Based on the evidence presented, the Referee found the Respondent guilty of

violating Rules 3-4.3 (Misconduct and Minor Misconduct) and 3-4.4 (Criminal

misconduct) of the Rules of Discipline and Rule 4-8.4(a) (A lawyer shall not

violate or attempt to violate the Rules of Professional Conduct, knowingly assist or

induce another to do so, or do so through the acts of another) of the Rules of

Professional Conduct. The Referee recommended that the Respondent receive a

forty-five day suspension for his misconduct.

In Supreme Court Case No. SC05-948, The Florida Bar File No. 2004-

70,368(11H), Ambrosio Morejon hired the Respondent to defend Mr. Morejon in a

criminal case. (T. 12/12/05 at 131, 133, 222-23). Mr. Morejon paid the

Respondent $3,500 for his services. (T. 12/12/05 at 132). After Mr. Morejon paid

the Respondent, the Respondent failed to perform any services on behalf of Mr.

Morejon. (T. 12/12/05 at 89, 133-34). Specifically, the Respondent continued to

delay the case rather than conduct any meaningful discovery. (T. 12/12/05 at 230-

31, 240, 251, 253-54). Further, the Respondent failed to keep Mr. Morejon

3
updated on the status of Mr. Morejon’s criminal case. (T. 12/12/05 at 134-35, 163-

65, 168-69, 176-78, 180).

This Court suspended the Respondent from the practice of law on May 30,

2002. (T. 12/12/05 at 193). The Respondent never informed Mr. Morejon that he

was ineligible to practice law or notified Mr. Morejon that he was withdrawing

from Mr. Morejon’s case due to this Court’s order of suspension. (T. 12/12/05 at

138). The Respondent never provided a copy of this Court’s order suspending him

from the practice of law to Mr. Morejon pursuant to Rule 3-5.1(g) of the Rules of

Discipline. (T. 12/12/05 at 138-39, 198). The Respondent also failed to provide a

copy of this Court’s order to all opposing counsel and to all courts where the

Respondent had pending cases. (T. 12/12/05 at 198, 200). The Respondent

provided a false affidavit to The Florida Bar stating that he had informed all

clients, opposing counsel, and courts of his suspension. (T. 12/12/05 at 200, 249).

Samantha Schosberg Feuer, the former Assistant State Attorney who

prosecuted Mr. Morejon’s criminal case, testified that she was never informed by

the Respondent that the Respondent was suspended from the practice of law. (T.

12/12/05 at 75-76). The first time Ms. Feuer ever saw a copy of this Court’s order

suspending the Respondent from the practice of law was when Bar Counsel

showed her a copy three years after the order was issued. (T. 12/12/05 at 78).

Further, the Respondent failed to ever notify anyone at the Miami-Dade State

4
Attorney’s Office of his suspension or provide anyone at the Miami-Dade State

Attorney’s Office with a copy of this Court’s order of suspension. (T. 12/12/05 at

87-88, 122-23). As late as November, 2002, the State Attorney’s Office believed

that the Respondent was eligible to practice law and still represented Mr. Morejon.

(T. 12/12/05 at 88, 93, 108-09).

The Florida Bar introduced into evidence an affidavit of the Honorable

Edward Newman. (TFB Ex. 7; Appendix C). Judge Newman was the presiding

judge in the case of State of Florida v. Ambrosio Morejon, case number 394769W.

(TFB Ex. 7; Appendix C). While presiding over Mr. Morejon’s criminal case,

Judge Newman was never informed by the Respondent that the Respondent was

suspended and not eligible to practice law. (TFB Ex. 7; Appendix C). The first

time Judge Newman ever saw a copy of this Court’s order suspending the

Respondent from the practice of law was when The Florida Bar presented him with

a copy three years after the order was issued. (TFB Ex. 7; Appendix C). The

Respondent never withdrew from Mr. Morejon’s case based on this Court’s order

of suspension. (TFB Ex. 7; Appendix C).

The Respondent testified that he was hired to represent Mr. Morejon in Mr.

Morejon’s criminal prosecution as well as in an administrative proceeding. (T.

12/12/05 at 223-24). In exchange for his representation, the Respondent charged

Mr. Morejon $1,500 for the administrative proceeding and $2,000 for the criminal

5
proceeding. (T. 12/12/05 at 226). The Respondent claimed that he went to court

on Mr. Morejon’s behalf at least six times. (T. 12/12/05 at 229). However, each

time the Respondent went to court, he moved for a continuance because he wanted

to delay the criminal proceeding. (T. 12/12/05 at 230-31).

In mitigation, the Respondent testified that he had gastric bypass surgery,

had two heart attacks, and suffered from diabetes, sleep apnea, and a food

addiction. (T. 12/12/05 at 234). The Respondent had his gastric bypass surgery

just before his May 30, 2002 suspension became effective. (T. 12/12/05 at 236).

The Respondent claimed that the only reason he did not inform Mr. Morejon of his

suspension was because Mr. Morejon disappeared. (T. 12/12/05 at 237). The

Respondent gave no explanation for his failure to inform opposing counsel and the

court presiding over Mr. Morejon’s matter of his suspension. Further, the

Respondent testified that the only reason Mr. Morejon filed his initial grievance

with The Florida Bar was because of the Respondent’s ex-wife. (T. 12/12/05 at

246, 248).

The Respondent admitted that he filed a false affidavit with The Florida Bar

indicating that he had informed all of his clients, courts, and opposing counsel of

his suspension. (T. 12/12/05 at 249). The Respondent reasoned that his affidavit

was false because the affidavit was “not easy,” and he had just separated from his

wife. (T. 12/12/05 at 249).

6
 Based on the evidence presented, the Referee found the Respondent guilty of

violating Rule 3-5.1(g) (Notice to Clients) of the Rules of Discipline and Rules 4-

1.1 (Competence), 4-1.3 (Diligence), 4-1.4(a) (Informing Client of Status of

Representation), 4-3.3(a) (False Evidence; Duty to Disclose), and 4-8.4(c) (A

lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation) of the Rules of Professional Conduct. The Referee

recommended that the Respondent receive a suspension of two years. Further, the

Referee recommended that prior to the Respondent’s reinstatement, the

Respondent should pay restitution to Mr. Morejon in the amount of $1,000.00.

Finally, the Referee recommended that upon reinstatement, the Respondent should

be placed on probation for three years with the condition that the Respondent

execute a contract with Florida Lawyers Assistance, Inc. and comply with the

terms of that contract.

In addition to the findings of guilt, the Referee made findings as to

aggravating and mitigating factors. The Referee found six aggravating factors and

two mitigating factors. The aggravating factors were 9.22(a) (prior disciplinary

offenses), 9.22(c) (a pattern of misconduct), 9.22(d) (multiple offenses), 9.22(f)

(submission of false evidence, false statements, or other deceptive practices during

the disciplinary process), 9.22(g) (refusal to acknowledge the wrongful nature of

conduct), and 9.22(i) (substantial experience in the practice of law). The

7
mitigating factors found were 9.32(c) (personal or emotional problems) and

9.32(h) (physical or mental disability or impairment).

8
 SUMMARY OF THE ARGUMENT

The sole issue before this Court is whether the Referee’s recommendation as

to discipline is appropriate. Neither party has challenged the Referee’s factual

findings.1

The Referee found that the Respondent was guilty of numerous ethical

violations in two separate cases from two separate periods of time. The Referee

also found six aggravating factors and only two mitigating factors.

The Florida Bar argues that the discipline recommended by the Referee is

inadequate given the factual circumstances of the instant cases, the disciplinary

history of the Respondent, the numerous aggravating factors, the case law, and

Florida’s Standards for Imposing Lawyer Sanctions.

This Court has the ultimate responsibility of determining what discipline to

impose. A number of cases support The Florida Bar’s contention that cumulative

misconduct of a similar and repeated nature and failure to comply with this Court’s

order mandate disbarment. This is the only appropriate discipline given the

Respondent’s prior disciplinary history for similar misconduct and the

Respondent’s disregard of this Court’s previous order of suspension. Furthermore,

although aggravating and mitigating factors must be given some weight, the

1
The Respondent did file a “Notice of Appeal,” but did not indicate what issues he
wanted this Court to review. Nevertheless, the Respondent has failed to timely file
his Initial Brief on Appeal. Accordingly, The Florida Bar has filed a Motion to
Dismiss the Respondent’s Petition for Review which is pending before this Court.
9
Respondent’s personal and physical problems should not be given greater weight

than the Respondent’s numerous rule violations, disciplinary history, and other

aggravating factors.

10
 ARGUMENT

THE REFEREE ERRED BY FAILING TO RECOMMEND

DISBARMENT FOR THE RESPONDENT’S MISCONDUCT

The Respondent has two pending cases for review. One case involves the

Respondent’s criminal conduct for failing to file federal income taxes. The other

case involves the Respondent’s neglect of a client matter and failure to comply

with Rule 3-5.1(g) of the Rules of Discipline. For both cases, the Referee has

recommended that the Respondent only receive a suspension.

This Court has the ultimate responsibility of determining what the

appropriate sanction is for unethical conduct. See The Florida Bar v. Vining, 7 So.

2d 1044, 1048 (Fla. 2000). Accordingly, although this Court “will not second-

guess a referee’s recommended discipline so long as that discipline has a

reasonable basis in existing caselaw,” this Court’s scope of review is broader than

that afforded to findings of fact. The Florida Bar v. Niles, 644 So. 2d 504, 506

(Fla. 1994). See also Vining, 7 So. 2d at 1048. In determining the appropriate

discipline, this Court has consistently considered a respondent’s prior misconduct

and cumulative misconduct. See id. Given the facts of the Respondent’s two

cases, the cumulative misconduct of a similar nature, the Respondent’s prior

disciplinary history, and the aggravating factors, this Court is urged to reject the

Referee’s recommendation of a suspension and impose the sanction of disbarment.

11
 In The Florida Bar v. Nedick, 603 So. 2d 502 (Fla. 1992), an attorney

received cash fees and failed to report his fees on his individual income tax returns.

See id. at 503. In a subsequent year, the attorney failed to report $7,500 he had

received. See id. Two years later, the attorney again failed to report $50,000 he

had received in cash fees. See id. Accordingly, disciplinary proceedings were

initiated against the attorney due to his failure to file income tax returns. See id.

The referee in Nedick found that the mitigating factors included the attorney’s lack

of a prior disciplinary record, his cooperation with federal officials, and other

penalties imposed. See id. In aggravation, the referee found that the attorney had

a dishonest or selfish motive and repetitious misconduct. See id. Upon review,

this Court disbarred the attorney. See id. Specifically, this Court found that failing

to file income tax returns was “fraudulent conduct of a serious order.” Id. This

Court also found the repetitious nature of the attorney’s misconduct, the

seriousness of the offense, and the attorney’s selfish and deceitful motive

outweighed any mitigation. See id. Accordingly, this Court disbarred the attorney.

See id.

Like the attorney in Nedick, the Respondent has engaged in “fraudulent

conduct of a serious order.” Id. The Respondent received a significant amount of

money, $400,000 to $500,000, over a number of years and failed to report any of it

to the IRS until the IRS contacted the Respondent. (ROR at 3). Further, the

12
Respondent’s aggravating factors outweigh any of his mitigating factors. (ROR at

10-11). Specifically, the Respondent has engaged in “fraudulent conduct of a

serious order,” repetitious misconduct over a number of years, and had a deceitful

motive like the attorney in Nedick.2 See also Florida’s Standards for Imposing

Lawyer Sanctions 5.11(f) and 5.12.

In The Florida Bar v. Jones, 571 So. 2d 426 (Fla. 1990), disciplinary

proceedings were initiated against a suspended attorney. See id. at 426. The

attorney misrepresented to the Supreme Court that he had fully complied with the

Court’s order suspending him. See id. Specifically, the attorney falsely

represented to the Supreme Court that he had informed all of his clients of his

suspension and provided them with copies of the Court’s suspension order when,

in fact, he had not. See id. At the final hearing, the attorney admitted that he had

not notified his clients of his suspension or provided them with a copy of the

Court’s suspension order. See id. at 427. This Court rejected the referee’s

recommendation of a suspension for the misconduct and disbarred the attorney.

See id. at 428. Specifically, the Court found that the attorney “knowingly

2
Although the Referee did not make a specific finding that the Respondent had a
deceitful motive, the Referee did find that the Respondent willfully failed to file
his income taxes and engaged in “other intentional conduct involving dishonesty,
fraud, deceit, or misrepresentation.” (ROR at 8). See, e.g., 26 U.S.C.A. 7203
(1990).
13
misrepresented his compliance with the suspension order” and disbarred the

attorney for his misconduct. Id.

Like the attorney in Jones, the Respondent misrepresented to this Court that

he had complied with this Court’s previous order of suspension. Specifically, the

Respondent provided a false affidavit to The Florida Bar, an arm of the Supreme

Court of Florida, stating that he had informed all of his clients of his suspension

and provided them with a copy of this Court’s suspension order, when in fact, he

did not. (T. 12/12/05 at 200, 249). The Respondent also knowingly

misrepresented in his affidavit that he had notified courts and opposing counsel of

his suspension and provided them with a copy of this Court’s suspension order.

(T. 12/12/05 at 200, 249). See also Florida’s Standards for Imposing Lawyer

Sanctions 5.11(f), 6.11(a), 6.11(b), and 8.1(a).

In The Florida Bar v. Demarco, 601 So. 2d 1197 (Fla. 1992), the attorney

had abandoned all of his clients. See id. at 1198. The attorney claimed that he did

not abandon his clients, but rather, had to relocate due to a severe physical

disability. See id. at 1199. This Court held that regardless of the attorney’s reason

for relocating, the attorney had the responsibility of notifying all of his clients that

he was closing his office. See id. Further, this Court held that the attorney had the

responsibility of notifying all of the courts and still had the responsibility of acting

diligently on his client’s behalf prior to any injury. See id. Accordingly, because

14
the attorney abandoned his law practice and left his clients unprotected, this Court

disbarred the attorney from the practice of law. See id. See also The Florida Bar

v. Blunt, 564 So. 2d 129 (Fla. 1990) (disbarring an attorney who neglected client

matters, abandoned law practice, and failed to notify any of his clients); The

Florida Bar v. Penrose, 413 So. 2d 15 (Fla. 1982) (disbarring an attorney who

abandoned his law practice).

In the case at bar, the Respondent neglected Mr. Morejon’s legal matters and

abandoned his law practice altogether. The Respondent claimed that the

abandonment was due to health reasons. (T. 12/12/05 at 233-41). Regardless of

why the Respondent ceased the practice of law, whether it was for health reasons

as he testified to or because of this Court’s order suspending him from the practice

of law, the Respondent failed to protect the interests of Mr. Morejon. Specifically,

Mr. Morejon was always under the impression that the Respondent was eligible to

practice law and was his attorney until he was informed otherwise by Judge

Newman. (T. 12/12/05 at 138, 166). Even opposing counsel and the presiding

court were under the impression that the Respondent still represented Mr. Morejon.

(T. 12/12/05 at 75-76, 88, 93, 108-93; TFB Ex. 7; Appendix C). The Respondent’s

misconduct is similar to the misconduct in Demarco, 601 So. 2d at 1197.

Regardless of what his reason was for ceasing the practice of law, there was no

excuse for the Respondent’s failure to notify Mr. Morejon that he was closing his

15
office or failing to notify any of the courts or opposing counsel. See id. at 1199.

See also Florida’s Standards for Imposing Lawyer Sanctions 4.41(a), 4.41(b),

4.41(c), 5.11(f), and 6.11(b). Further, like the attorney in Demarco, the

Respondent was neglectful even prior to his abandonment of his law practice.

(ROR at 6). Specifically, the Respondent provided no services whatsoever on Mr.

Morejon’s behalf. (T. 12/12/05 at 89, 133-34). During the entire time that the

Respondent represented Mr. Morejon, the Respondent never informed Mr.

Morejon of any plea offers, never discussed any trial strategies with Mr. Morejon,

never discussed any potential defenses with Mr. Morejon, never discussed

potential defense witnesses with Mr. Morejon, never discussed what motions could

be filed on Mr. Morejon’s behalf, never filed any motions on Mr. Morejon’s

behalf, never conducted discovery, never discussed with Mr. Morejon the

possibility of testifying at trial, never updated Mr. Morejon on the status of Mr.

Morejon’s case, and never informed Mr. Morejon of any court dates. (T. 12/12/05

at 89, 133-35, 163-65, 168-69, 176-78, 180). During the entire time the

Respondent represented Mr. Morejon, the Respondent neglected Mr. Morejon’s

criminal case.

The Respondent has previously been disciplined for neglecting clients’ legal

matters. (T. 12/12/05 at 194). See The Florida Bar v. Cimbler, 840 So. 2d 955

(Fla. 2002); The Florida Bar v. Cimbler, Supreme Court Case No. 81,952 (Fla.

16
1995). This Court has consistently held that “cumulative misconduct of a similar

nature warrants an even more severe discipline than might dissimilar conduct.”

Vining, 7 So. 2d at 1048. The Respondent has previously been given both a non-

rehabilitative and a rehabilitative suspension for neglect of client matters. Rather

than become rehabilitated, the Respondent has again neglected client matters.

Pursuant to Vining, the Respondent’s cumulative misconduct warrants severe

discipline. See also Florida’s Standards for Imposing Lawyer Sanctions 8.1(b).

In addition to case law, the Florida’s Standards for Imposing Lawyer

Sanctions should be considered in determining what discipline to impose. See The

Florida Bar v. Brown, 905 So. 2d 76, 83 (Fla. 2005) citing The Florida Bar v.

McFall, 863 So. 2d 303, 307 (Fla. 2003). In his Report of Referee, the Referee

found that Standards 4.41(a), 4.41(b), 4.41(c), 4.42(a), 4.42(b), 5.11(f), 5.12,

6.11(a), 6.11(b), 6.12, 8.1(a), and 8.1(b) were the appropriate standards to consider.

The vast majority of these standards state that disbarment is the appropriate

sanction.

Specifically, Standard 4.41(a) states that “disbarment is appropriate when a

lawyer abandons the practice of law and causes serious or potentially serious injury

to a client.” Standard 4.41(b) states that “disbarment is appropriate when a lawyer

knowingly fails to perform services for a client and causes serious or potentially

serious injury to a client.” Standard 4.41(c) states that “disbarment is appropriate

17
when a lawyer engages in a pattern of neglect with respect to client matters and

causes serious or potentially serious injury to a client.” Standard 5.11(f) states that

“disbarment is appropriate when a lawyer engages in any other intentional conduct

involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely

reflects on the lawyer’s fitness to practice law.” Standard 6.11(a) states that

“disbarment is appropriate when a lawyer, with the intent to deceive the court,

knowingly makes a false statement or submits a false document.” Standard 6.11(b)

states that “disbarment is appropriate when a lawyer improperly withholds material

information, and causes serious or potentially serious injury to a party, or causes

significant or potentially significant adverse effect on the legal proceeding.”

Standard 8.1(a) states that “disbarment is appropriate when a lawyer intentionally

violates the terms of a prior disciplinary order and such violation causes injury to a

client, the public, the legal system, or the profession.” Finally, Standard 8.1(b)

states that “disbarment is appropriate when a lawyer has been suspended for the

same or similar misconduct, and intentionally engages in further similar acts of

misconduct.”

In recommending his discipline, the Referee relied upon the cases of The

Florida Bar v. Pearce, 631 So. 2d 1092 (Fla. 1994) and The Florida Bar v.

Santiago, 521 So. 2d 1111 (Fla. 1988). In Pearce, 631 So. 2d at 1092, this Court

suspended an attorney for 45 days for failing to file his federal income tax returns

18
for two years. See id. at 1094. Pearce is distinguishable from the present case,

however. In Pearce, the attorney was forty-nine years old and had no prior

disciplinary convictions. See id. at 1093. Additionally, the attorney in Pearce

cooperated with authorities which was considered a mitigating factor. See id.

Unlike the attorney in Pearce, the Respondent has a lengthy disciplinary history.

Specifically, in Supreme Court Case No. 81-557 [The Florida Bar File No. 1993-

70,988(MES-11H)], the Respondent was suspended on an emergency basis for

trust account violations pursuant to Court order dated April 20, 1993. In Supreme

Court Case No. 81-952 [The Florida Bar File Nos. 1992-71,139(11H); 1992-

71,404(11H); 1992-71,482(11H); 1993-70,042(11H); 1993-70,254(11H); 1993-

70,330(11H); 1993-70,448(11H); 1993-70,715(11H); and 1993-70,950(11H)], the

Respondent was suspended for a period of ninety days for failing to cooperate with

the Bar during disciplinary proceedings, trust account violations, and neglect of

client matters pursuant to Court order dated June 8, 1995. In Supreme Court Case

No. SC01-116 [The Florida Bar File Nos. 1999-71,000(11H); 2000-70,519(11H);

and 2000-71,321(11H)], the Respondent was suspended for one year for neglect of

client matters and trust account violations pursuant to Court order dated November

14, 2002. Finally, in The Florida Bar File No. 1998-70,123(11H), the Respondent

was admonished for failing to cooperate with the Bar during disciplinary

proceedings pursuant to grievance committee report dated January 15, 1999. (T.

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12/12/05 at 192-98). The Respondent, who is younger than the attorney in Pearce,

has consistently been disciplined by this Court for over ten years. The Respondent

has failed to become rehabilitated. Further, unlike the attorney in Pearce, the

Respondent did not cooperate with any authorities. Rather, the Respondent waited

until the authorities approached him before he was ever willing to pay any of his

income taxes. (T. 12/15/05 at 307).

Additionally, the Referee relied upon the case of Santiago, 521 So. 2d at

1111. While this Court in Santiago held that disbarment was appropriate for

failure to comply with an order of suspension, the Referee departed from the

standard set in Santiago because of the mitigating factors of the Respondent’s

personal and physical problems. (ROR at 12). The Respondent’s mitigating

factors, however, are far outweighed by the aggravating factors that exist. The

aggravating factors found by the Referee include the Respondent’s prior

disciplinary history. See Standard 9.22(a). As discussed previously, the

Respondent has consistently been disciplined by this Court, yet continues to

commit unethical conduct including continuously neglecting client matters. The

Referee also found as an aggravating factor the Respondent’s pattern of

misconduct. See Standard 9.22(c). Again, as stated, the Respondent has engaged

in cumulative misconduct of a similar nature. The Respondent has continued to

neglect client matters for over ten years. The Respondent has also been found

20
guilty of committing multiple offenses. In Supreme Court Case No. SC04-2050,

The Florida Bar File No. 2003-71,385(11E), the Respondent has violated three

different rules. In Supreme Court Case No. SC05-948, The Florida Bar File No.

2004-70,368(11H), a completely different and unrelated case, the Respondent has

violated six different rules for two different types of misconduct, neglect of client

matters and failure to comply with this Court’s order of suspension. Additionally,

the Respondent has submitted false statements during the disciplinary proceeding.

See Standard 9.22(f). Specifically, the Respondent submitted an affidavit stating

that he had informed all clients, opposing counsel, and courts of his suspension and

provided them with copies of this Court’s order. The Referee has found that this,

in fact, was false. (ROR at 4; T. 12/12/05 at 200, 249). The Respondent has also

refused to acknowledge any wrongdoing. See Standard 9.22(g). Rather than admit

any wrongdoing, the Respondent has blamed The Florida Bar (T. 12/12/05 at 242-

43, 254-57), his ex-wife (T. 12/12/05 at 245-48, 257-59), and Mr. Morejon (T.

12/12/05 at 237, 243-44, 247) for maliciously prosecuting him. Irrespective of the

Respondent’s lack of acknowledgment of any wrongdoing, he did in fact fail to file

federal income taxes, submitted a false affidavit, and neglected Mr. Morejon’s

criminal matter. Finally, the Respondent has substantial experience in the practice

of law. See Standard 9.22(i). The Respondent has been an attorney since October

15, 1985. (T. 12/12/05 at 192). The mitigating factors that were found by the

21
Referee do not outweigh the numerous aggravating factors. Further, Florida’s

Standards for Imposing Lawyer Sanctions and case law all hold that disbarment is

the appropriate sanction for the Respondent’s misconduct. The limited mitigating

factors found by the Referee do not overcome this presumption.

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 CONCLUSION

The purpose of disciplinary proceedings is to protect the public and the

administration of justice from lawyers who have not, will not, or are unlikely to

properly discharge their professional duties to clients, the public, the legal system,

and the legal profession. Based on the prior disciplinary history of the Respondent,

it is obvious that the Respondent will never properly discharge his professional

duties. He has consistently neglected client matters and committed other types of

unethical conduct. The aggravating factors far outweigh any mitigating factors.

Based on the numerous aggravating factors, the case law, Florida’s Standards for

Imposing Lawyer Sanctions, and the cumulative nature of the Respondent’s

misconduct, it is respectfully requested that the Referee’s recommendation of

discipline be rejected and the Respondent should be disbarred from the practice of

law.

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 Respectfully submitted,

______________________________
BARNABY LEE MIN
Bar Counsel
TFB No. 385719
The Florida Bar
444 Brickell Avenue
Suite M-100
Miami, Florida 33l3l
Tel: (305) 377-4445

JOHN ANTHONY BOGGS

Staff Counsel
TFB No. 253847
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
Tel: (850) 56l-5600

JOHN F. HARKNESS, JR.

Executive Director
TFB No. 123390
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
Tel: (850) 56l-5600

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and seven copies of The Florida

Bar's Initial Brief was forwarded via regular mail to the Honorable Thomas D.

Hall, Clerk, Supreme Court of Florida, Supreme Court Building, 500 South Duval

Street, Tallahassee, Florida 32399-1927, and a true and correct copy was mailed to

Saul Cimbler, the Respondent, at his record Bar address of P.O. Box 370624,

Miami, Florida 33137-0624, and to his last known address of 3030 SW 21 Street,

Miami, Florida 33145, and to John Anthony Boggs, Staff Counsel, at The Florida

Bar, 651 East Jefferson Street, Tallahassee, Florida 32399, on this ______ day of

March, 2006.

____________________________
BARNABY LEE MIN
Bar Counsel

CERTIFICATE OF TYPE, SIZE AND STYLE

I HEREBY CERTIFY that the Initial Brief of The Florida Bar is submitted

in 14 point proportionately spaced Times New Roman font in Microsoft Word

format.

___________________________
BARNABY LEE MIN
Bar Counsel

25
 APPENDIX

A. Report of Referee dated December 16, 2005.

B. Transcript of Trial Testimony of Saul Cimbler in United States of America

v. Jose Fernandez, case nos. 02-2017-Cr-Ungaro-Benages and 02-20178-Cr-
Ungaro-Benages.

C. Affidavit of the Honorable Edward Newman dated December 8, 2005.

26