The Florida Bar v. Robert Joseph Ratiner

Citation: 238 So. 3d 117Docket: SC13-539

Court: Supreme Court of Florida; February 21, 2018; Florida; State Supreme Court

Original Court Document: View Document

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The Supreme Court of Florida reviewed a referee's report recommending that Robert Joseph Ratiner be found guilty of professional misconduct and suspended from practicing law for three years. The Court approved the referee's findings and the aggravating and mitigating factors but rejected the recommendation for an additional three-year suspension, opting instead for disbarment due to Ratiner's escalating misconduct. Ratiner has a history of disciplinary actions, including a previous sixty-day suspension with probation and a subsequent three-year suspension. The current allegations stem from Ratiner's behavior during a post-trial hearing in the case Sidran v. E.I. DuPont De Nemours and Co., where he was overheard saying "lie, lie, lie" while opposing counsel was questioning his partner. Despite Ratiner's denial, the referee found the presiding judge's testimony credible and concluded that Ratiner violated Bar Rules prohibiting disruptive conduct and professional misconduct.

Ratiner's behavior during post-hearing proceedings in the Sidran case included repeatedly kicking the leg of counsel’s table, which was deemed disruptive by lead opposing counsel, Andrew Brenner. The referee noted that Brenner demonstrated the disruptive nature of the kicks, which Judge Donner corroborated, stating that she had called for a sidebar after witnessing this behavior multiple times, ultimately leading her to end the post-trial hearing. The referee concluded that Ratiner intended to disrupt the proceedings, violating Bar Rules 4-3.5(c) and 4-8.4(d).

Additionally, evidence of further misconduct was summarized, including Ratiner's disregard for agreed limits on closing arguments, his aggressive behavior in court, and incidents of throwing documents. Judge Donner described Ratiner's conduct as disrespectful and disruptive, labeling him a "bully" and indicating that she reported his behavior to the Bar.

In determining the appropriate sanction, the referee identified four aggravating factors: prior disciplinary offenses, a pattern of misconduct, refusal to acknowledge the wrongful nature of his conduct, and substantial experience in law. Mitigating factors included the absence of dishonest motives, favorable character or reputation, and potential physical or mental impairment. The referee also considered precedent cases in recommending discipline.

The referee recommended a consecutive three-year suspension for Ratiner, citing findings of fact, aggravating and mitigating factors, and relevant case law, although he did not elaborate on the individual cases or their support for the sanction. The Bar seeks a review of this recommendation, arguing for disbarment, while Ratiner contests the referee's findings, advocating for a concurrent suspension instead. The Court's review of factual findings is limited to whether they are supported by competent, substantial evidence, and it will not reweigh evidence or substitute its judgment. The burden is on Ratiner to prove that the findings lack evidentiary support or are contradicted by the record. The referee’s credibility assessments are given deference, and his findings regarding Ratiner’s guilt were upheld as fully supported by evidence. Specifically, Ratiner was found to have violated Bar Rule 4-3.5(c) by intentionally disrupting court proceedings through disruptive behavior, including saying "lie, lie, lie" and kicking counsel’s table. Ratiner's denial of these actions did not meet the standard for overturning the findings, as the referee found the testimonies of Judge Donner and Mr. Brenner credible, leading to a conclusion that Ratiner also violated Bar Rule 4-8.4(a) by breaching the Rules of Professional Conduct.

Ratiner disputes the referee’s findings, dismissing the credible testimony of Judge Donner and relying on his own rejected testimony. The referee's findings are supported by substantial evidence, and a respondent may be found guilty of violating Bar Rules if found guilty of other violations. Specifically, Bar Rule 4-8.4(a) indicates that any violation of another bar rule inherently constitutes a violation of this rule. Bar Rule 4-8.4(d) prohibits conduct harmful to the administration of justice, including disparaging or humiliating others involved in legal proceedings. The referee concluded that Ratiner's act of kicking counsel's table, corroborated by credible witnesses, constituted a violation of this rule. Ratiner's claim of not recalling such behavior was deemed insufficient against the referee's assessment of witness sincerity. The court endorses the referee's factual findings and recommendations of guilt but reviews the recommended sanction of a consecutive three-year suspension, which the Bar seeks to have disapproved in favor of disbarment. The court’s review of sanctions is broader than that of factual findings, though it typically respects the referee's recommendations if they align with existing case law and standards. Cumulative misconduct is treated more severely, and various factors are considered in sanctioning. However, the recommendation of a consecutive three-year suspension contradicts Standard 2.3, which prohibits suspensions exceeding three years when combined with an existing suspension.

Ratiner faces a recommended six-year suspension, which contradicts Standard 2.3, as the referee failed to specify the Standards that justified a consecutive suspension beyond noting aggravating and mitigating factors. Standard 8.1 dictates disbarment is warranted in the absence of such circumstances, particularly when a lawyer has prior suspensions for similar misconduct and continues similar behavior. The context shows that disbarment aligns with the Standards due to Ratiner's previous disciplinary actions. The referee's findings of aggravating factors are backed by competent, substantial evidence and are presumed correct unless proven clearly erroneous. Ratiner’s prior disciplinary case involved disruptive behavior during a deposition, where he intimidated opposing counsel and the deponent, resulting in a violation of multiple Bar Rules, including those against misconduct and disruptive actions in court.

A sixty-day suspension and a public reprimand were determined as the appropriate sanction for the first case, followed by a two-year probationary period. The misconduct was deemed serious enough that a video of the incident would be used in professionalism courses for Bar members and law students as an example of poor conduct. 

In a second case against Ratiner, the Bar's complaint stemmed from his behavior during a document review session in a lawsuit involving DuPont, where he made inappropriate comments about opposing counsel’s co-counsel, referring to her as a "dominatrix" in a loud voice meant to embarrass her. His actions were found to disparage and humiliate Ms. Souza-Rasile. Subsequently, Daboll hired a videographer due to Ratiner's conduct. On the second day, Ratiner forcefully attempted to take documents from Daboll despite her objections, leading to intervention by a security guard.

Ratiner was found to have violated multiple Bar Rules concerning unlawful conduct, using means to embarrass others, and engaging in conduct prejudicial to the administration of justice. Consequently, on September 2, 2015, he received a three-year suspension. The referee noted aggravating factors such as a pattern of misconduct, a refusal to acknowledge wrongdoing, and his substantial experience in law, highlighting a consistent history of unprofessional behavior and attempts to shift blame.

Ratiner contends that an aggravating factor in his case should not apply due to his consistent claims of innocence, referencing Florida Bar v. Karten. However, it is determined that his claims lack good faith, as he has repeatedly denied inappropriate conduct despite clear evidence. Ratiner's belief that such conduct reflects zealous advocacy is deemed unacceptable. He acknowledges his extensive legal experience since 1990. 

Regarding mitigation, the referee identified some mitigating factors under Standard 9.32, including the absence of a dishonest motive, character, and physical or mental impairment. Ratiner argues for additional mitigators related to the timing of the disciplinary complaint and prior offenses. He notes that the conduct in question occurred in 2011, with the Bar's complaint filed in March 2013, and claims that prior disciplinary actions were relatively remote. However, the Bar's complaint was timely under the applicable rules, and the referee's decision on mitigators carries a presumption of correctness. 

The referee also noted that previous misconduct occurred only two to four years prior, and in similar cases, the Court has progressively increased sanctions for repeated violations. The cited cases suggest that disbarment is warranted for attorneys with prior suspensions for similar misconduct, reinforcing that disbarment is reserved for severe infractions. Ratiner's ongoing egregious misconduct reflects a disregard for professional standards, indicating a lack of willingness to adhere to legal ethics.

Attorneys are urged to maintain professionalism and civility in their conduct, emphasizing the importance of focusing on case substance rather than engaging in disrespectful behavior toward judges and opposing counsel. The Court has a longstanding commitment to upholding standards of professionalism and does not condone unprofessional conduct. As a result, the Court has decided to disbar Robert Joseph Ratiner, who is currently suspended, with the disbarment taking effect immediately. Ratiner is required to comply with Bar Rule 3-5.1(h) and must pay costs amounting to $4,889.74 to The Florida Bar. This decision is officially recorded, with the judges concurring and one judge recused. Filing a motion for rehearing will not change the effective date of the disbarment.