Supreme Court of Florida
                                   ____________

                                  No. SC10-1793
                                  ____________

                              THE FLORIDA BAR,
                                 Complainant,

                                         vs.

                          SUSAN K. W. ERLENBACH,
                                 Respondent.

                                   [May 1, 2014]

PER CURIAM.

      We have for review an uncontested referee’s report recommending that

Susan K. W. Erlenbach be found guilty of professional misconduct and suspended

for eighty-nine days, followed by a two-year period of probation. We have

jurisdiction. See art. V, § 15, Fla. Const. After considering the parties’ responses

to our order to show cause, 1 we approve the referee’s findings of fact and




      1. The Court issued an order directing the parties to show cause why it
should not disapprove the referee’s recommended sanction and why a harsher
sanction should not be imposed. Fla. Bar v. Erlenbach, SC10-1793 (Fla. Feb. 13,
2013).
recommendations of guilt. We disapprove the recommended sanction and, instead,

impose a one-year suspension, followed by a two-year period of probation.

                                        FACTS

      The Florida Bar filed a complaint alleging that Respondent Susan K. W.

Erlenbach had engaged in ethical misconduct. The case was referred to a referee to

make findings of fact, recommendations as to guilt, and recommend a disciplinary

sanction. Before the referee, the parties stipulated to facts that support a

recommendation that Respondent is guilty of violating Rules Regulating the

Florida Bar 3-4.3 (commission of an act that is unlawful or contrary to honesty and

justice) and 4-8.4(c) (conduct involving dishonesty, fraud, deceit or

misrepresentation). The referee has submitted a report to the Court based on the

parties’ stipulation, in which the referee made the following findings of fact and

recommendations.

      Respondent has failed to file timely joint tax returns for the tax years 1997,

1998, 1999, 2000, 2001, 2002, 2004, 2005, and 2006, even after the extensions

permitted by the Internal Revenue Service (IRS). Also, Erlenbach sought and

received a discharge of liability for the taxes, interest, and penalties due for tax

years 1998, 1999, 2000, 2001, 2002, 2003, 2004, and 2005. She presently owes

taxes, interest, and penalties to the Department of Treasury for tax years 2006,

2007, 2008, and 2009. The failure to file tax returns as required by the Internal



                                          -2-
Revenue Code is a violation of the Bar rules. See Fla. Bar v. Behm, 

(Fla. 2010); Fla. Bar v. Marks, 

(Fla. 1979).

      There was no evidence that Respondent attempted to evade responsibility for

personal income taxes. The delays in filing the personal tax returns occurred

during periods when Erlenbach was preoccupied not only with her law practice but

with caring for several members of her extended family who had serious medical

conditions from the middle 1990s through 2006. The IRS has imposed significant

financial penalties and interest for the late tax returns, but has not charged her with

a crime. Respondent has made payments in excess of $500,000 toward past due

taxes, interest, and penalties.

      In addition, Erlenbach withheld federal income tax, social security tax, and

Medicare tax from employees of her professional association, “Susan K.W.

Erlenbach, P.A.,” but failed to pay the sums withheld over to the Department of the

Treasury as required by the Internal Revenue Code. Respondent engaged in this

activity intermittently from 2006 through 2008. As a result, the IRS determined

that Respondent’s professional association and Respondent individually owe a total

of $13,634.05. Erlenbach and the IRS have agreed to a payment plan, which

Erlenbach is following by making monthly payments as required by the agreement.

More than half of this debt had been paid by the time of the hearing before the

referee. The referee found that Erlenbach’s failure to remit employment taxes was



                                         -3-
not based upon greed or selfish motivation. Her lifestyle was not, and is not,

lavish. The referee found that her failure to pay the withholdings and the

employer’s matching share is due to poor business management of her practice’s

finances.

      Erlenbach’s intentional failure to pay the Department of the Treasury the

funds that were withheld from her employees constitutes violations of 26 U.S.C.

§ 7202, “Willful failure to collect or pay over tax,” and 26 U.S.C. § 7203, “Willful

failure to file return, supply information, or pay tax.” Although Erlenbach has not

been charged with or convicted of any misdemeanor or felony for her misdeeds,

the failure to pay the funds withheld from employees to the federal government

violates Bar rules 3-4.3 and 4-8.4(c). Respondent has a repayment agreement with

the IRS and is performing her obligations under the agreement. Also, she has

admitted that her failure to file timely joint personal tax returns, failure to pay her

joint income tax obligations, and failure to pay withholdings violate Bar rules 3-4.3

and 4-8.4(c). Erlenbach has accepted responsibility for her misconduct.

      With regard to aggravating factors, Respondent has been the subject of three

prior disciplinary proceedings. The first case, in 2001, resulted in a finding of

minor misconduct, admonishment, and one year of probation. For the second case,

which occurred in 2006, Erlenbach received a public reprimand and two years of

probation. In the third case, in 2007, she was the subject of a petition for contempt



                                          -4-
for failing to comply with the terms of her disciplinary probation. She was

suspended in July 2007 subject to her suspension being lifted upon compliance

with the terms of probation. Respondent’s suspension was lifted in October 2007

and she completed her probationary period without further incident. Her prior

disciplinary cases in 2006 and 2007 are aggravating factors.

      The second aggravating factor is that Respondent’s repeated late filing of tax

returns and failure to pay taxes demonstrate a pattern of misconduct. She failed to

pay over her employees’ withheld taxes to the federal government in 2006, 2007,

and 2008.

      The third aggravating factor is that Erlenbach has been practicing law since

1982, so she is experienced as an attorney.

      As for mitigating factors, Respondent has admitted that she failed to pay

federal income taxes, failed to timely file federal income tax returns, and failed to

pay money withheld from her law firm’s employees. She has admitted to violating

Bar rules 3-4.3 and 4-8.4(c). Erlenbach has accepted responsibility for her

misconduct, expressed remorse, and cooperated during these proceedings.

      An extensive number of judges and attorneys testified that Respondent is an

able advocate who vigorously represents her clients in a capable and professional

manner. The witnesses’ testimonies indicate that Respondent enjoys a good

professional and ethical reputation among her clients, other attorneys, and the



                                         -5-
judiciary. She provides valuable legal services to her clients, many of whom could

not afford an attorney but for her.

      Next, Respondent has put in place procedures to avoid any continued

violation of the regulations regarding tax withholdings. Also, she has established a

payment schedule to repay the taxes due and has paid more than fifty percent of

those amounts.

      Further, Erlenbach provides services as an advocate to many clients who are

underprivileged and whose rights would otherwise not be protected by a skilled

advocate. She has actively provided legal services for the less fortunate for the

past twenty years.

      In addition, the personal and emotional problems Respondent was

experiencing were a substantial contributing factor in her misconduct. Her

financial problems occurred during the same period that: (1) her husband had been

diagnosed with and was being treated for cancer, and (2) there was an economic

decline in her geographic area due to termination of the space shuttle program.

Also, she suffers from depression and severe anxiety.

      As a disciplinary sanction, the referee recommended an eighty-nine-day

suspension, followed by a two-year period of probation, and payment of

disciplinary costs totaling $4,274.20. The conditions of probation would include

quarterly reports to the Bar reflecting payment of all taxes due for Respondent’s



                                        -6-
law firm’s employees and payment of any personal income tax due on

Respondent’s individual income. As a term of probation, Erlenbach would submit

to the IRS an offer and compromise concerning her personal tax debt.

                            THE COURT’S REVIEW

      After the referee submitted the report, the Court reviewed the referee’s

findings and recommendations. See R. Regulating Fla. Bar 3-7.7(a)(2) (the Court

shall review all reports of referees recommending probation, public reprimand,

suspension, disbarment, or resignation pending disciplinary proceedings).

Considering the Court’s established case law, the referee’s recommended sanction

did not appear to be appropriate. Of the six cases cited by the referee to support

the recommended sanction, five cases were decided in or before 1985. The sixth

case was decided in 1994. The sanctions imposed in those specific cases are

lenient when compared to more recent case law. In 2002, the Court commenced

imposing more severe sanctions for attorney misconduct. See Fla. Bar v. Rotstein,

, 246 (Fla. 2002). Thus, for the instant case, the Court issued an

order directing the parties to show cause why it should not disapprove the referee’s

recommended discipline and why a harsher sanction should not be imposed. See

R. Regulating Fla. Bar 3-7.7(c)(6)(A) (the Court may direct the parties to submit

briefs directed to the appropriateness of the disciplinary measure recommended by




                                        -7-
the referee). The parties have filed separate responses to the order, which are

discussed below.

                                     ANALYSIS

      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 our responsibility to order the appropriate sanction. See Fla. Bar v.

Anderson, 

, 854 (Fla. 1989); see also art. V, § 15, Fla. Const.

However, generally speaking, this Court will not 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. See Fla. Bar v.

Temmer, 

, 558 (Fla. 1999).

      Respondent asserts that the referee’s recommended sanction is supported.

She cites several cases to support a non-rehabilitative suspension, all but two of

which were decided well over twenty-five years ago in the 1960s through 1980s.2

One of the more recent cases Erlenbach cites is Florida Bar v. Smith, 

(Fla. 1995). Respondent argues that Smith supports the referee’s

recommended sanction because the respondent in Smith received a six-month

suspension based on his conviction for tax evasion. However, Respondent is

       2. Although Respondent relies on one case stating that it was issued in
1997, the case was actually issued in 1977. Fla. Bar v. Ryan, 

(Fla. 1977).


                                         -8-
misguided because the Court imposed a three-year suspension in Smith. Further,

under the Court’s more recent case law, such as Behm, 

, it is likely

Smith would receive a more severe sanction if his case were decided today.

      The Bar also argues that the referee’s recommended sanction is supported.

The Bar relies upon Florida Bar v. Pearce, 

(Fla. 1994), in which

the respondent received a forty-five-day suspension for failing to file personal

income tax returns for a period of two years. Here, Erlenbach failed to file timely

joint tax returns for nine years, which violated Bar rules 3-4.3 and 4-8.4(c).

Further, she withheld funds for federal income tax, social security tax, and

Medicare tax from her employees, but did not pay those funds to the Treasury

Department as required by federal law. This misconduct constitutes additional

violations of Bar rules 3-4.3 and 4-8.4(c). Thus, the misconduct in Pearce is

significantly different from the misconduct in the present case. However, the

Court’s statement in Pearce directly speaks to Erlenbach’s conduct—attorneys

have a “special obligation to obey the law.” 

      It is well established that attorneys’ compliance with tax requirements is an

issue that the Court takes very seriously. The Court has stated that “As guardians

of the law, lawyers have a special obligation to honor the law themselves,

including the tax laws.” Fla. Bar v. Del Pino, 

, 560-61 (Fla. 2007).

In Del Pino, the respondent received a three-year suspension based in part on her



                                         -9-
conviction for filing a false motion for an extension to file and pay taxes. 

The Court expressly noted that, but for significant mitigation, the

respondent in Del Pino would have been disbarred. 

Also, the Court

clearly stated that it will discipline “attorneys for failing to live up to the duty of

every citizen to pay federal income taxes.” 

      In Florida Bar v. Weed, 

, 1096 n.4 (Fla. 1990), we expressly

approved the referee’s finding that the respondent’s “failure to file tax returns

amounted to engaging in illegal conduct involving moral turpitude . . . .” This

misconduct, along with other misdeeds, resulted in a three-year suspension for

Weed. See 

(suspending an attorney for three years for

tax evasion and other misconduct where the attorney had underreported his income

due to financial pressures and an inability to pay the full tax owed).

      Similarly, in Florida Bar v. Cimbler, 

, *1 (Fla. 2008)

(table citation at 

(Fla. 2008)), the Court stated that “Cimbler’s

failure to timely file income tax returns and to timely pay income taxes is

condemned and constitutes a failure of responsibility and a failure to be a

responsible citizen.” The Court disapproved the referee’s recommended period of

suspension, stating that “Such actions by a member of The Florida Bar warrant a

longer suspension than that recommended by the referee.” The Court imposed a




                                          - 10 -
two-year suspension followed by a three-year period of probation as the

appropriate sanction.

      In the instant case, Erlenbach failed to file timely joint tax returns for nine

years, even after the extensions permitted by the IRS. Next, although Respondent

received a discharge of liability for the taxes, interest, and penalties due for tax

years 1998, 1999, 2000, 2001, 2002, 2003, 2004, and 2005, she still owes taxes,

interest, and penalties for the 2006, 2007, 2008, and 2009 tax years. Erlenbach is

clearly failing to abide by the laws that citizens are required to address each year.

Further, the misconduct at issue is not an isolated lapse of judgment. Erlenbach’s

failures to comply with the tax requirements extend over a significant span of

time—the referee found she has failed to comply with tax requirements for 13

years—which is intolerable as she is a professional who is responsible for assisting

others with their legal issues. In Florida Bar v. Lord, 

, 986 (Fla.

1983), the Court found the respondent’s repeated failures to file income tax returns

for an extended period “reflect[ed] a flagrant and deliberate disregard for the very

laws which respondent took an oath to uphold.”

      Next, Respondent engaged in additional misconduct by withholding federal

taxes from her employees, but then failing to pay the sums withheld to the federal

government. This failure occurred “intermittently from 2006 until 2008.” We note

that Respondent filed her quarterly tax returns in a timely manner even when she



                                         - 11 -
was unable to remit the entire amount of taxes owed; thus, it appears she was

candid with the IRS about these financial problems.

      Erlenbach’s conduct violates the Bar rules because she has committed acts

that are unlawful or contrary to honesty and justice (rule 3-4.3) and she has

engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation (rule

4-8.4(c)). The Court has repeatedly shown that it views an attorney’s compliance

with the tax laws as a very serious matter. See 

(the

Court discussed disciplinary cases involving attorneys and tax requirements which

resulted in disbarments or three-year suspensions).

      Case law demonstrates that attorneys who fail to comply with tax laws are

subject to severe sanctions. Here, the referee found that Erlenbach did not seek to

evade paying taxes; rather, she did not have the financial means to make the

payments. Also, Respondent has a repayment agreement with the IRS and the

referee found that she is meeting her financial responsibilities under the agreement.

Further, the referee found significant mitigation. For these reasons, we find that

the appropriate sanction for Respondent is a one-year suspension followed by a

two-year period of probation. The conditions of probation include quarterly

reports to the Bar reflecting payment of all taxes due for Respondent’s law firm’s

employees and payment of any personal income tax due on Respondent’s

individual income.



                                        - 12 -
                                   CONCLUSION

      Accordingly, we approve the referee’s findings of fact, recommendations of

guilt, and award of costs. We disapprove the referee’s recommended sanction of

suspension for eighty-nine days. Susan K. W. Erlenbach is hereby suspended from

the practice of law for one year, followed by a two-year period of probation. The

suspension will be effective thirty days from the date of this opinion so that Susan

K. W. Erlenbach can close out her practice and protect the interests of existing

clients. If Respondent notifies this Court in writing that she is no longer practicing

and does not need the thirty days to protect existing clients, this Court will enter an

order making the suspension effective immediately. Susan K. W. Erlenbach shall

fully comply with Rule Regulating the Florida Bar 3-5.1(h), “Notice to Clients.”

Respondent shall accept no new business from the date this opinion is filed until

she is reinstated by order of this Court.

      Further, we approve the referee’s recommended conditions of probation,

which include quarterly reports to The Florida Bar reflecting payment of all taxes

due for Respondent’s law firm’s employees and payment of any personal income

tax due on Respondent’s individual income.

      Judgment is entered for The Florida Bar, 651 East Jefferson Street,

Tallahassee, Florida 32399-2300, for recovery of costs from Susan K. W.

Erlenbach in the amount of $4,274.20, for which sum let execution issue.



                                            - 13 -
      It is so ordered.

POLSTON, C.J., and QUINCE, CANADY, and LABARGA, JJ., concur.
LEWIS, J., concurs in result.
PARIENTE, J., dissents with an opinion, in which PERRY, J., concurs.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.


PARIENTE, J., dissenting.

      I respectfully dissent from the majority’s decision to reject the referee’s

recommended discipline, which was agreed to by The Florida Bar and the

Respondent, consisting of an eighty-nine-day suspension followed by a two-year

period of probation, and instead suspend the Respondent for one year followed by

a two-year period of probation. 3 In imposing a much harsher sanction than was

recommended by the referee and concluding that the referee’s recommended

discipline was without a reasonable basis in existing case law, the majority, in my

view, erroneously relies on prior cases from this Court that are readily

distinguishable from this case. While a review of this Court’s recent decisions on

        3. The sanction imposed by the majority is actually more disparate from the
referee’s recommended discipline than it first appears. Under the sanction
imposed by the majority, not only will the Respondent be unable to practice law
for one year, but, upon the expiration of that suspension, she will have to seek
reinstatement—a procedure that is not automatic and oftentimes extends an
attorney’s suspension by a substantial, additional period of time. See R.
Regulating Fla. Bar 3-7.10 (providing the procedure through which a “lawyer who
is ineligible to practice due to a court-ordered disciplinary suspension of 91 days or
more” may seek to be reinstated to membership in good standing with The Florida
Bar).

                                        - 14 -
similar issues reveals that disbarment or a prolonged suspension, as imposed by the

majority, is appropriate in some cases where an attorney fails to timely file tax

returns, this Court has not recently addressed a case presenting misconduct that is

similarly less aggravated and more mitigated as the Respondent’s, which was not

predicated upon selfish motive and did not result in a criminal conviction as in the

cases cited by the majority.

      Unlike the majority, I would uphold the referee’s recommended discipline,

which is a conclusion that is supported by the fact that the purposes behind lawyer

discipline are not furthered—and are actually thwarted—by the sanction imposed

by the majority. In addition to the fact that no clients were harmed by the

Respondent’s actions and that there is extensive mitigation in this case, the

extended rehabilitative suspension imposed by the majority will cause great

hardship to the Respondent’s pro bono clients and will also impair the

Respondent’s ability to meet her continuing obligations to the Internal Revenue

Service (IRS).

      The discipline being imposed on the Respondent arises from her failure to

timely file joint personal tax returns and her failure to pay her employees’ withheld

taxes to the federal government. As the majority acknowledges, there was “no

evidence that Respondent attempted to evade responsibility for personal income

taxes.” Majority op. at 3. Indeed, as the majority notes, the failures that produced



                                        - 15 -
the misconduct at issue occurred as a result of the Respondent’s inability to pay the

required taxes, during a time that she was “caring for several members of her

extended family who had serious medical conditions.” 

Respondent has subsequently taken responsibility for her actions, has entered into

a monthly payment plan with the IRS to repay her back taxes, and has already

made payments to the IRS in excess of $500,000.

      As for the Respondent’s failure to pay her employees’ withheld taxes to the

IRS, the majority also recounted the referee’s findings that the Respondent’s

“failure to remit employment taxes was not based upon greed or selfish

motivation,” and that the Respondent’s “lifestyle was not, and is not, lavish.”

Majority op. at 3-4. Instead, as noted by the referee, the Respondent’s failure to

pay the withholdings and the employer’s matching share was based solely upon the

Respondent’s poor management of her practice’s finances. While this certainly

does not justify her misconduct, it illustrates that the Respondent’s actions do not

justify the severe sanction imposed by the majority. Moreover, the Respondent has

also accepted responsibility for this misconduct and has entered into another

payment plan with the IRS in order repay the employment taxes she failed to remit.

      On the other side of the equation, the Respondent also presented substantial

mitigating evidence before the referee, who was able to fully weigh this mitigating

evidence in recommending appropriate discipline. The referee heard testimony



                                        - 16 -
from no less than nineteen witnesses, including distinguished judges and lawyers,

who testified as to the Respondent’s good character and reputation, her continued

commitment to provide legal services to the poor, and the fact that her derelictions

were not motivated by personal greed but by personal circumstances. Indeed, it is

undisputed that the Respondent has actively provided legal services for the less

fortunate for the past twenty years.

      The majority itself notes the “extensive number” of judges and attorneys

who testified that the Respondent “is an able advocate who vigorously represents

her clients in a capable and professional manner . . . enjoys a good professional and

ethical reputation among her clients, other attorneys, and the judiciary . . . [and]

provides valuable legal services to her clients, many of whom could not afford an

attorney but for her.” Majority op. at 5-6. Some of the distinguished jurists who

testified on the Respondent’s behalf included Judges Bruce W. Jacobus and

Vincent Torpy, of the Fifth District Court of Appeal, and Judge J. Preston

Silvernail, of the Eighteenth Judicial Circuit Court.

      While the majority explicitly acknowledges all of this mitigation, it

nevertheless concludes that even though the Bar continues to advocate for the

agreed-to sanction recommended by the referee, the failure to file joint personal tax

returns for such a lengthy period of time deserves much more serious discipline.

Although I appreciate the aggravating factors found by the referee, and admit that



                                         - 17 -
failing to file tax returns constitutes serious misconduct, I conclude that the

underlying misconduct in this case is substantially different than in the cases relied

on by the majority and that this case involves the type of mitigation that does not

require a rehabilitative sanction. Both of these factors differentiate this case from

this Court’s recent decisions in which the Court has disciplined attorneys for

failing to timely file tax returns.

       In Florida Bar v. Behm, 

, 148-149 (Fla. 2010), this Court

discussed the range of recent cases in which this Court has disciplined attorneys

who failed to timely file tax returns. For example, in Florida Bar v. Del Pino, this

Court suspended an attorney for three years who had failed to file personal tax

returns for several years based on a selfish motive, was convicted of two felonies,

and had filed a false application for extension of time to file an income tax return.

, 558-59 (Fla. 2007); see also Fla. Bar v. Smith, 

,

981-82 (Fla. 1995) (suspending an attorney for three years for two tax evasion

convictions and other misconduct); Fla. Bar v. Nedick, 

, 503 (Fla.

1992) (disbarring an attorney based on a conviction for tax evasion and for filing a

false tax return based upon a dishonest or selfish motive); Fla. Bar v. Weed, 

, 1096 (Fla. 1990) (suspending an attorney for three years where the

attorney was convicted for failure to file tax returns and also neglected legal

matters). The majority relies on Del Pino, as well the other cases cited in Behm, as



                                         - 18 -
support for rejecting the referee’s recommended discipline and imposing a much

harsher sanction. This reliance is misplaced, however, as each of these cases is

readily distinguishable from this case.

      Unlike the cases cited in Behm, the Respondent in this case did not willfully

seek to avoid paying taxes, was truthful, was not charged with or convicted of any

related crime, and has subsequently taken significant steps to remedy her past

derelictions. Moreover, the mitigating circumstances underlying the Respondent’s

misconduct demonstrate that her misconduct is qualitatively different than the

misconduct in those cases where this Court has imposed harsh discipline. These

differences highlight why the type of discipline imposed by this Court in the past is

inappropriate in this case and provide support for imposing the type of discipline

recommended by the referee.

      The only recent case cited by the majority that could potentially support the

majority’s rejection of the referee’s recommended discipline is Florida Bar v.

Cimbler, 

(Fla. 2008) (table decision), in which this Court

suspended an attorney for two years for failure to timely file tax returns. However,

Cimbler is unpublished and provides no background into the attorney’s

misconduct. In the absence of any factual context for this Court’s decision to

impose a two-year suspension in Cimbler, it is unclear whether this case is on

point, and thus it cannot form the basis for overturning the referee’s recommended



                                          - 19 -
discipline because it does not establish that the referee’s recommended sanction

had no reasonable basis in existing case law.

      Additionally, the discipline imposed by the majority does not further the

purposes that underlie attorney discipline, as articulated by this Court. In

determining whether a sanction is appropriate, this Court has stated that it takes

into account the following three purposes:

      First, the judgment must be fair to society, both in terms of protecting
      the public from unethical conduct and at the same time not denying
      the public the services of a qualified lawyer as a result of undue
      harshness in imposing penalty. Second, the judgment must be fair to
      the respondent, being sufficient to punish a breach of ethics and at the
      same time encourage reformation and rehabilitation. Third, the
      judgment must be severe enough to deter others who might be prone
      or tempted to become involved in like violations.

(quoting Fla. Bar v. Barrett, 

, 1275-76

(Fla. 2005)). In light of these purposes, I believe the harsh sanction imposed by

the majority is inappropriate. Although the majority’s sanction is undeniably

severe enough to satisfy this Court’s goal of deterring future misconduct, this

penalty does not further the remaining two purposes of attorney discipline.

      In imposing attorney discipline, this Court must not deny the public the

services of a qualified lawyer as a result of undue harshness. 

by

both the referee and the majority, many of the Respondent’s clients could not

afford a lawyer if she did not agree to represent them. By suspending the

Respondent from the practice of law for an extended period of time, this Court is


                                        - 20 -
denying the public the services of a competent lawyer, willing to represent those

who would otherwise go unrepresented, for longer than is necessary to adequately

punish the Respondent for her misconduct.

      Further, the harsh punishment imposed by the majority is unfair to the

Respondent, because it will severely impede her ability to satisfy her obligations to

the IRS. Without the ability to practice law for one year, the Respondent will

surely experience difficulty in making the monthly payments she is obligated to

make pursuant to her IRS payment plans. In my opinion, where an attorney has

admitted her misconduct, has shown remorse, and has taken steps to repay the

taxes that she previously failed to pay, it is counterintuitive to impose a lengthy

suspension that will surely impair that attorney’s ability to repay the unpaid taxes

that are at the center of the misconduct.

      It is also important to note that the majority’s decision to impose much

harsher discipline than was recommended by the referee and was agreed to by The

Florida Bar disregards the important considerations underlying this Court’s

historical deference to a referee’s recommended discipline. See Fla. Bar v.

Glueck, 

, 1058 (Fla. 2008) (“[G]enerally speaking, this Court will

not 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.”). This Court has explained that it generally defers to the



                                        - 21 -
discipline recommended by the referee in bar discipline cases because “[t]he

referee, as finder of fact in Bar disciplinary proceedings, is in a unique position to

assess the credibility of witnesses and appraise the circumstances surrounding

alleged violations,” and that the referee “occupies a favored vantage point for

assessing key considerations—such as a respondent’s degree of culpability and his

or her cooperation, forthrightness, remorse, and rehabilitation (or potential for

rehabilitation).” Fla. Bar v. Lecznar, 

, 1287-88 (Fla. 1997). By

rejecting the referee’s recommended discipline without any precedent showing that

the sanction put forth by the referee was inappropriate, the majority discounts the

referee’s superior vantage point in assessing the unique nature of the Respondent’s

case and neglects this Court’s historical deference to the referee’s recommended

discipline.

      Although the majority is correct that this Court takes very seriously an

attorney’s compliance with tax requirements, this concern does not, standing alone,

justify the harsh sanction that is imposed by the majority in this case. In my view,

the mitigating circumstances that contributed to the Respondent’s misconduct, as

well as the mitigating evidence presented before the referee, support the referee’s

recommended discipline. Accordingly, because the majority’s rejection of the

referee’s recommended discipline, which was agreed to by The Florida Bar and the

Respondent, is predicated upon distinguishable case law and because the much



                                         - 22 -
harsher sanction imposed by the majority does not further this Court’s purposes for

attorney discipline, I dissent.

PERRY, J., concurs.


Original Proceeding – The Florida Bar

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida;
Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida; and Jan K.
Wichrowski, Bar Counsel, The Florida Bar, Orlando, Florida,

      for Complainant

Mark Stephen Peters of Berry and Peters, Viera, Florida,

      for Respondent




                                        - 23 -