IN THE SUPREME COURT OF FLORIDA
(Before A Referee)
THE FLORIDA BAR,
Complainant,

Case No. SC17-542
TFB File No. 2016-10,778 (12A)

°°
I N FRANCIS LAKIN,
Respondent.

REPORT OF THE REFEREE
I.

SUMMARY OF PROCEEDINGS:
Pursuant to the undersigned being duly appointed as Referee to conduct

disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the
following proceedings occurred:
On March 29, 2017, the Bar filed a complaint alleging that Respondent had
violated Rules 3-4.3, 4-8.4(a), and 4-8.4(d) of the Rules Regulating the Florida
Bar.

Trial was held on May 30, 2018 through May 31, 2018. The transcript was
received by the Referee on June 8, 2018. All items properly filed including
pleadings, recorded testimony (if transcribed), exhibits in evidence and the Report
of Referee constitute the record in this case and are forwarded to the Supreme
Court of Florida.

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 The following attorneys appeared as counsel for the parties:
On behalf of the Florida Bar:

Troy Matthew Lovell
The Florida Bar
4200 George J. Bean Parkway

Suite 2580
Tampa, Florida 33607

On behalf of the Respondent:

John A. Weiss
Rumberger, Kirk & Caldwell, P.A.
101 North Monroe Street

Suite 120 (32301)
P.O. Box 10507
Tallahassee, Florida 32302

II.

FINDINGS OF FACT
A.

Jurisdictional Statement

Respondent is, and at all times mentioned during this Investigation was, a
member of The Florida Bar subject to the jurisdiction and Disciplinary Rules of the
Supreme Court.

B.

Narrative Summary

Underlying Proceedings
Respondent presided over a jury trial from June 22, 2015 through June 25,
2015, on which date the jury returned a verdict in favor of the defendant. On June
26, 2015 Respondent's Judicial Assistant received a call from plaintiff's counsel

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 offering Respondent tickets to a baseball game between the Tampa Bay Rays and
the Boston Red Sox that night. Respondent instructed the Judicial Assistant to call
and accept the tickets. Plaintiff's counsel provided Respondent with five tickets,

and he used two, discarding the remainder.
On July 2, 2015, plaintiff's counsel filed a motion for new trial. On August
21, 2015, a hearing was held on the motion, and Respondent reserved ruling. On
August 25, 2015, Respondent instructed his Judicial Assistant to request tickets to
the baseball game between the Tampa Bay Rays and the Minnesota Twins.
Plaintiff's counsel delivered the tickets to the Judicial Assistant in open court. On
August 26, 2015, Respondent granted the motion for new trial. On September 12,
2015, Respondent requested additional baseball game tickets, which plaintiff's
counsel provided. The defendant appealed on September 21, 2015. On October 3,
2015, Respondent requested additional tickets, which plaintiff's counsel provided.
On October 9, 2015, Respondent held a status conference, at which time he

disclosed he had accepted baseball tickets from plaintiff's counsel. On October 15,

2015, Respondent recused himself from the case.
On February 1, 2016, the JQC filed a notice of formal charges against
Respondent. On March 7, 2016, Respondent resigned as a circuit court judge. The
JQC voluntarily dismissed its case against Respondent based on his resignation on
March 10, 2016. On March 15, 2016, the Supreme Court dismissed formal charges
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 against Respondent. On November 17, 2016, the Second District Court of Appeal

reversed his order granting the motion for new trial.
Trial
At trial, Respondent testified that he was admitted in 2001 (T. 18). He had
been admitted in Massachusetts in 1990 and the District of Columbia in 2001 (T.

18). He had never been sanctioned or disciplined before (T. 18). He was certified
in civil practice (T. 19). He was elected circuit court judge in 2012 (T. 20). He
presided over approximately 40 trials while on the bench (T. 20). Respondent
acknowledged that Exhibit 1 was the gift disclosure form dated June 23, 2014,
wherein he had disclosed baseball tickets worth about $200 from the law firm of
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Gallagher & Hagopian (T. 24-25). He filed a similar form in 2015 (T. 25). He
acknowledged that Exhibit 2 was an evaluation ofjudges by the Sarasota Bar
Association, in which he was ranked highly (T. 25-26). He acknowledged that
Exhibit 3 was a composite of character attestations (T. 27). He testified that the

situation had garnered a lot of press (T. 27). Respondent testified that he was
extremely remorseful that the appearance of the justice system was compromised,
but insisted that the receipt of the baseball tickets "had nothing to do with the

ruling" (T. 27-28).
Respondent testified that it was extremely difficult to transition to being a
judge, stating that "I did not anticipate the level of scrutiny day-to-day on
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 individual decisions I would make as a judge by outside factors. I found that to be
very troubling" (T. 32). He recalled that he sent the jury to deliberate

approximately 5:00 P.M., over the strenuous objection of plaintiff's counsel (T.
33). The jury verdict was read about 8:00 P.M. (T.33). He testified that he was
stunned by the jury's verdict, because he felt there was overwhelming evidence for
the plaintiff (T. 36). He started researching the law on a new trial, and asked court
counsel to research the issue as well (T. 40). The day after the verdict, plaintiff's
counsel offered the tickets, and he went to the game with his son (T. 40-41). The
remaining three times he received tickets, he asked his Judicial Assistant to call to
request tickets (T. 41). Respondent testified that he believed he could accept the
042
tickets as gifts as long as he disclosed the tickets on the form (T. 42). He did not
believe the tickets were an attempt to influence him, because he did not know
plaintiff's counsel, and "no lawyer ever had any influence on my decisions" (T.
41). His decision on the motion for new trial "had nothing to do with baseball

tickets" (T. 48; 52).
Respondent testified that it was well known that the attorneys would drop
off tickets with the bailiffs for anyone to take (T. 48-49). He wanted to go to the
baseball games with his son because his son was having mental health issues (T.
49; 53-54). While he received five tickets each time he requested tickets, he only
used two tickets per game (T. 49-50; 51). Respondent stated that he asked a fellow
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 judge in the elevator whether he should disclose all five tickets or just the two he
used, and the fellow judge asked him what law firm had given him the tickets (T.
55-56). It did not occur to him that he should not have received the tickets at all
(T. 56). He had received tickets from a law firm before (T. 56). The attorney at
that law firm had appeared before him in criminal court before and after he
received the tickets (T. 57). He also received tickets from another law firm, but the
attomey did not appear before him, and he paid for those tickets (T. 58). After his
discussion with the fellow judge in the elevator, he was called into a meeting and
was advised of the violation (T. 59). Based on the recommendation of the other
judges, he self-reported to the JQC (T. 59). He strenuously denied violating the
rule of fairness to the parties because "the process was not corrupted in any way.
There was no nexus or connection to the tickets and my decision" (T. 63). He
conceded that receiving the tickets from attorneys appearing before him created the
appearance of impropriety (T. 63). The JQC voluntarily dismissed its investigation
because he resigned in order to focus on his son (T. 63-66). On cross-examination,
Respondent testified that he was not aware of any other judges using baseball
tickets from the law firm (T. 75).
Judge Peter Dubensky testified that Respondent had frequently come to him
for advice (T. 82). He never had any reservations about Respondent's integrity or
honesty (T. 83). Respondent had a reputation as a hard worker and a judge who
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 struggled to be fair (T. 84). Judge Dubensky believed that Respondent had the
highest moral character (T. 85). Respondent discussed with him how many
baseball tickets to disclose (T. 86-87). When he learned that Respondent had
received the tickets from the law firm in a pending case Respondent was presiding
over, he discussed it with another judge, and then brought it to the chiefjudge (T.
87). At the meeting, Respondent was initially bewildered by the importance they
were attaching to the situation (T. 87-88). Respondent was viewed differently after
he recused, because "I think that to a lot of lawyers, it was staggering that he and
Mr. Kallins and Mr. Little had been involved in this ... exchange" (T. 91). On
cross-examination, Judge Dubensky testified that he learned about Respondent's
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receipt of the tickets through Respondent's Judicial Assistant, who was concerned
about it and discussed it with his Judicial Assistant (T. 92). He was surprised
"because it seems to me to be an elementary principle of being a judge not to
accept a gift from an attorney while you are considering a matter when the other
side is not aware of what's going on" (T. 92-93). He was not aware of any other
judges accepting baseball tickets, or accepting any gifts from attorneys appearing
before them while a case was in progress and without disclosing it to the other side

(T. 93).
Attorney Steven Heintz testified that he had known Respondent for 17 or 18
years (T. 98). He was impressed with Respondent's diligence and preparation (T.
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 99). Mr. Heintz believed Respondent had an excellent reputation in the legal
community while he was on the bench, as being very fair (T. 100-101). When he

learned Respondent had accepted baseball tickets, he thought it was unfortunate,
and it looked bad (T. 102). Based on his knowledge of Respondent, he did not
think receiving the tickets would have influenced how Respondent ruled on a case
(T. 103). It was well known in the community that Mr. Kallins and Mr. Little
offered free baseball tickets to the legal community (T. 103). He had no
reservations about Respondent's ethics, professionalism or integrity (T. 103-104).
Attorney Layon Robinson testified that he has known Respondent since the
1990s (T. 107). Respondent had a very good reputation and was an excellent judge
042
(T. 108). Shortly after Respondent resigned, they offered him a partnership in their
firm (T. 109-110). He has full confidence in Respondent's integrity (T. 111-112).
Jerome Tomasso testified that he had been a bailiff before retiring (T. 114).
He believed Respondent was a good man (T. 115-116). Respondent was very
professional on the bench, patient, and calm (T. 118). Respondent had an excellent
and unblemished reputation in the community when he was on the bench (T. 118).
Mr. Tomasso stated that he had been in the field for 40 years and "there's not one
iota in my body that believes that he would do anything wrong" (T. 119). He
believed that Respondent is an asset to the legal profession (T. 120).

Attorney Tracy Lee Kramer testified that she is an associate in
8

 Respondent's law firm (T. 122). She believed that Respondent "is a person of
utmost good character and professionalism, honesty, and integrity" (T. 128). She
believed he was an asset to the Florida Bar (T. 129).
Judge Edward Nicholas testified that he has known Respondent for three or

four years prior to Respondent taking the bench (T. 135). Respondent was a good
judge, and would not have done anything deliberately to damage the reputation of

the bench (T. 137). He did not believe Respondent would have intentionally done
anything to jeopardize the appearance of fairness or justice in the circuit (T. 137138). He believed that there was never any intention "to influence a decision or
impact the case, but that wasn't the point. The point was just how bad it looked..."
042
(T. 139). Judge Nicholas did not believe receiving the tickets influenced
Respondent's decision in any way (T. 139).
Attorney Lisa Chittaro testified that she practiced before Respondent as a

prosecutor when he was on the criminal bench (T. 144). She attended his
investiture and believed that it was something very important to him (T. 145-146).
She appreciated that he took the time to explain his rulings so people left the

courtroom "feeling that justice was served" (T. 148). When she was a prosecutor
she appeared before over 100 judges, and she ranked Respondent in the top five (T.
149). She did not believe Respondent would deliberately do anything to damage
the reputation of the bench in the circuit (T. 149).
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 Judge Frederick Mercurio testified that he met Respondent seven or eight
years ago (T. 154). He believed Respondent has a great character, and was hard
working and honest (T. 157). "There is no question in my mind that" Respondent

had no bad intent when he accepted the baseball tickets (T. 158). He did not
believe accepting the tickets would have influenced Respondent's decision (T.

158-159). He believed Respondent would be an asset to the 12* Circuit Bar if he
was allowed to continue practicing there (T. 159-160).
Judge Charles Williams testified that he had known Respondent for ten
years or more (T. 164). Judges Dubensky and Moreland met with him to advise
him of the situation regarding Respondent's receipt of the tickets, and he
subsequently met with them and Respondent (T. 166-167). During the meeting,

Respondent appeared to realize his actions could be perceived as improper, and he
was apologetic (T. 167). He believed Respondent had been a judge for two or
three years at that point (T. 167-168). Respondent did not resist the advice to selfreport to the JQC (T. 168). Judge Williams did not believe Respondent accepted
the tickets with any wrongful motive (T. 169). He did not believe the tickets
influenced Respondent's decision in the case (T. 169-170). He believed
Respondent would be an asset to the Bar if allowed to continue practicing (T. 170).
In rebuttal, regarding the inconsistency between his testimony and that of
042
Judge Dubensky as to how Judge Dubensky was informed about the tickets being
10

 provided by counsel in the pending case, Respondent maintained that he told Judge

Dubensky in the elevator, and perhaps Judge Dubensky did not hear him (T. 173).
Respondent expressed his remorse, and indicated he took responsibility for his
actions (T. 175-176). Respondent believed he would always be rehabilitating his
reputation (T. 178).

C.

Violation

I recommend that the Respondent be found guilty of violating the following
Rules Professional Conduct or Rules of Discipline:

1.

Violation of Rule 3-4.3: Misconduct and Minor Misconduct.
"The commission by a lawyer of any act that is unlawful or
contrary to honesty and justice may constitute a cause for

discipline..."
The clear and convincing evidence is that Respondent accepted baseball
tickets from counsel while their motion for new trial was pending before him. No

other judges had ever taken or requested tickets, even though the attorneys

routinely left tickets with the bailiffs for anyone to use. Respondent knew or
should have known that accepting tickets from counsel as the presiding judge
while a ruling on counsels' motion was pending was contrary to justice.

Respondent did not inform opposing counsel that he had accepted tickets four
times from plaintiff's counsel. Respondent's only concern was disclosing the

11

 tickets on the gift form. Respondent was not forthcoming about the facts
surrounding his acceptance of the tickets, and Judge Dubensky was informed of
those facts only when Respondent's Judicial Assistant disclosed her concerns
about the situation.

2.

Violation of Rule 4-8.4(a): Misconduct.

"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;"
The clear and convincing evidence is that the Referee believes Respondent
violated Rule 3-4.3 and Rule 4-8.4(d), and the analyses for those violations are
incorporated here by reference.
3.

Violation of Rule 4-8.4-(dh Misconduct.
"A lawyer shall not ... engage in conduct in connection with the
practice of law that is prejudicial to the administration ofjustice..."

The clear and convincing evidence is that Respondent accepted and
requested baseball tickets from plaintiff's counsel while he was the presiding
judge, while counsels' motion for new trial was pending before him. This was
prejudicial to the administration ofjustice because it damaged the perception of
Respondent's impartiality. Judge Dubensky and Judge Nicholas testified that the
situation looked bad, and no other judges had ever accepted baseball tickets from
042
a lawyer. Second, Respondent was required to recuse himself, delaying
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 proceedings. Third, it caused the defense to incur the time and expense of an

appeal that may have been unnecessary based on the strongly worded reversal by
the Second District Court of Appeal.

III.

PERSONAL HISTORY, PAST DISCIPLINARY RECORD AND
AGGRAVATING AND MITIGATING FACTORS
Prior to recommending discipline pursuant to Rule 3-7.6 (m)(1), I considered

the following:
A.

Personal History of Respondent:

Respondent testified that he was admitted to the Bar in 2001. He was board
certified in civil trial practice since 2006. He had been a member of the Bar for 28
years. He was also admitted in Massachusetts in 1990 and the District of Columbia
in 2001. He was elected to the bench in 2013 and resigned in 2016. Respondent
testified that going to the baseball games was important to him in order to spend

time with his son, who had mental health issues.
B.

Duties Violated:
1.

The duties violated by Respondent to the public. (See Florida's
Standards for Imposing Lawyer Sanctions; Section 5.0, pp. 34-

38).
2.
3.

The duties violated by the Respondent to the legal system.
(See Florida's Standards for Imposing Lawyer Sanctions
with Commentary, Section 6.0, pp. 38-43).
The duties violated by the Respondent as a professional. (See
Florida's Standards for Imposing Lawyer Sanctions
with Commentary, Section 7.0, pp. 43-45).
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 C.

The potential or actual injury caused by the Respondents'

Misconduct:
No evidence was presented regarding any actual injury or prejudice caused
by Respondent's conduct. The potential injury caused was damage to the public's
perception of the justice system and the impartiality ofjudges. Judge Dubensky
testified that Respondent was viewed differently after this incident came to light.
The appearance of undue influence damaged the public perception of Respondent,
and the justice system. Respondent's acceptance of the tickets, then request for
more tickets damaged the reputation ofthe attorneys who provided those tickets.
Respondent's failure to notify defense counsel about his receipt of the tickets
precluded counsel from the opportunity to object to his presiding over the motion
for new trial. Defense counsel's testimony in the hearing for Mr. Kallins and Mr.

Little implied that the defense in the underlying case could have been prejudiced
by engaging in what he felt was unnecessary appellate proceedings. However,

Respondent testified that he would have granted the motion for new trial even if he
had not received the tickets, so the defense would have appealed his ruling

regardless.
D.

The existence of aggravating or mitigating circumstances
The recommendation for discipline takes into consideration the

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 following aggravating and mitigating factors as were in effect during the period
of time relevant to this proceeding:
1.

2.

IV.

Appravators:

a.

Multiple offenses: Standard 9.22(d). During the relevant
time period, Respondent engaged in more than one incident
of improper conduct.

b.

Substantial experience in the practice of law: Standard
9.22(i). Respondent had been practicing for about 22 years.

Mitigation: The Court finds the following as to mitigating factors:
a.

Absence of prior disciplinary record: Standard 9.32(a). The
Referee has not been made aware of any prior disciplinary
record of the Respondent.

b.

Character or reputation: Standard 9.32(g). Multiple
witnesses testified as to the character of Respondent.

c.

Interim rehabilitation: Standard 9.32(j). Respondent selfreported to the JQC, and voluntarily resigned.

d.

Remorse: Standard 9.32(1). Respondent appeared genuinely
remorseful for the events that have occurred.

RECOMMENDATION AS TO GUILT
I recommend that Respondent be found guilty of violating the above rules.

Resspondent was a veteran attorney who knew or should have known that
receiving a gift of any value from counsel while counsels' motion was pending
before him would create an appearance of being influenced by the gift. See The

15

 Florida Bar v. Saxon, 379 So. 2d 1281 (Fla. 1980). While not as egregious as an

outright bribe, and while the monetary value may have been minimal, Respondent
here accepted the gift of value, then requested tickets three more times during the
pendency of the motion for new trial. The tickets had value to Respondent because

it allowed him to bond with his son, who was having health issues. Respondent
admitted that it did not occur to him that accepting the tickets, and requesting
tickets three more times, while the case was pending would create an appearance
of impropriety. The rules require the profession, especially judges, to always to
think about the implications of their words or actions. It is unacceptable that
Respondent was so oblivious to the implications of his actions.
As to rule 4-8.4(d), Respondent's actions prejudiced the administration of
justice because his conduct created the appearance of impropriety. See The Florida

Bar v. Scheinberg, 129 So.3d 315, 318 (Fla. 2013). The appearance of
Respondent's conduct, given the timing of his acceptance of the baseball tickets

from counsel during the pendency of a ruling on counsels' motion for new trial,
was that Respondent was influenced by the gift to rule in counsels' favor. As in
Scheinberg, the appearance of improper influence in this case "served to damage
the perception ofjudicial impartiality." I_d. There is no requirement that the judge
actually be influenced by an attorney's conduct in order for that conduct to
prejudice the administration ofjustice. See The Florida Bar v. Von Zamft, 814 So.
16

 2d 3 85, 389 (Fla. 2002).
As to rule 3-4.3, Respondent violated this rule because accepting a gift of

value as the presiding judge from counsel during the pendency of a ruling on
counsels' motion for new trial was contrary to justice. Further, Respondent was
not forthcoming regarding the situation surrounding his receipt of the tickets.
Respondent's Judicial Assistant was so concerned by the situation that she brought

it to Judge Dubensky's Judicial Assistant.
Rule 4-8.4(a) is violated whenever any other rule is violated, and I have
recommended that Respondent be found guilty of violating other rules. See The

Florida Bar v. Letwin, 70 So.3d 578 (Fla. 2011).
V.

RECOMMENDATION AS TO DISCIPLINARY MEASURES TO
BE APPLIED
I find that the mitigating evidence outweighs the aggravating evidence in

this case. There was no evidence presented of actual prejudice to the defendants in

the underlying case. Respondent recused from the case, self-reported to the JQC,
then resigned from the bench. Respondent expressed remorse, acknowledged that
he did not think about the implications, and acknowledged that his actions were
wrong. Respondent presented compelling evidence to show his good character and

reputation in the legal community. I recommend that Respondent be found guilty
of misconduct justifying disciplinary measures and that he be disciplined by:
17

 A. Suspension lasting 90 days, see 3-5(e); followed by probation lasting
one year, see 3-5(c); and

B. Admonishment, see 3-5.1(a) & (b). I recommend that Respondent,
while on probation, complete a practice and professionalism enhancement
program. I would also recommend that Respondent be required to speak
to new judges about this incident as part of the training given to new
judges.

VI. STATEMENT OF COSTS AND MANNER IN WHICH COSTS
SHOULD BE TAXED
I find the following costs were submitted to the Court in the form of an
Affidavit by The Florida Bar and the Respondent did not object:

A.
1.

2.
3.
4.

Administrative costs pursuant to Rule

3-7.6(q)(1)(I)........................................... $1,250

Court Reporter's Fees................................. $3,480.55
Bar Counsel Costs.....................................$476.07
Shipping Costs..........................................$37.39
Total: $5,244.01

B.

Manner of Payment:

It is recommended that such costs be charged to the Respondent and that

interest at the statutory rate shall accrue and be payable beginning 30 days after the
judgment has become final unless a waiver is granted by the Board of Governors of
The Florida Bar.
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 Dated this 22"4 day of June, 2018.

/s/ARCHIE B HAYWARD JR
Archie B. Hayward Jr.
Referee

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing Report of Referee has been

sent: by certified mail to THE HONORABLE JOHN TOMASINO, Clerk, Supreme
Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-1927; by
email to THE HONORABLE JOHN TOMASINO, Clerk, Supreme Court of
Florida, e-file@ficourts.org; and that copies were mailed by regular U.S. Mail to:
Troy Matthew Lovell, Esq., The Florida Bar, 4200 George J. Bean Parkway, Ste.
2580, Tampa, Florida 33607; John A. Weiss, Esq., Rumberger, Kirk & Caldwell,

P.A., 101 North Monroe Street, Suite 120 (32301), P.O. Box 10507, Tallahassee,
Florida 32302; this 22 day of June, 2018.
/s/SIMONE HUMES
Judicial Assistant

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