          Supreme Court of Florida
                                   ____________

                                    No. SC17-55
                                   ____________

                              THE FLORIDA BAR,
                                 Complainant,

                                         vs.

                      JACQUELINE MARIE KINSELLA,
                              Respondent.

                                December 20, 2018

PER CURIAM.

      This case is before us on the review of a referee’s report recommending that

Respondent, Jacqueline Marie Kinsella, be found guilty of various violations of the

Rules of Professional Conduct arising from her theft of money from Kohl’s

Department Store, where she worked as an employee. After finding numerous

mitigating factors, the referee recommended that Kinsella be suspended from the

practice of law for ten days. Neither party contested the findings of guilt, but The

Florida Bar sought review of the ten-day suspension, arguing in favor of a

rehabilitative suspension of ninety-one days. After reviewing the referee’s report,

we suspended Kinsella immediately and issued an order to show cause why she
should not receive a more severe sanction up to and including disbarment. Having

considered the record, the responses to the order to show cause, and our prior case

law, we conclude that a more severe sanction than a ninety-one day suspension is

required and hereby suspend Kinsella from the practice of law for three years.

                                      FACTS

      Kinsella was admitted to The Florida Bar in February 2016. 1 On three

separate occasions between April 21, 2016, and May 6, 2016, Kinsella stole money

from three different cash registers at the Kohl’s Department Store where she

worked. She stole $140 on April 21, 2016, $100 on April 25, 2016, and $520 on

May 6, 2016.

      In May 2016, she was arrested and charged with grand theft of $300 or more

but less than $5,000. On September 1, 2016, Kinsella entered a no contest plea to

the first-degree misdemeanor charge of petit theft, and the remaining charges were

dismissed by the State. Adjudication of guilt was withheld and she was placed on

probation under the supervision of the Department of Corrections for a period of

twelve months. Kinsella was further ordered to pay court costs and restitution to




      1. Prior to becoming an attorney, Kinsella had two misdemeanor traffic
cases brought against her, which were the subject of inquiry by the Florida Board
of Bar Examiners.


                                        -2-
Kohl’s, perform fifty hours of community service, complete a Vital Life Skills

Class, and not to enter or go upon the premises of any Kohl’s store.

         On January 11, 2017, The Florida Bar filed its formal complaint against

Kinsella in these proceedings. On January 31, 2017, Kinsella filed her Answer

wherein she admitted the alleged facts and rule violations. On April 27, 2017, a

sanction hearing was held before a referee to determine the appropriate disciplinary

sanction. Because Kinsella admitted all allegations contained in the Bar’s formal

complaint, no evidentiary testimony was presented to establish findings of fact or

guilt.

         The referee found that Kinsella fully cooperated with law enforcement and

the Bar, her misconduct was not related to alcohol or drug abuse or a gambling

addiction, and none of the stolen funds were related to the practice of law.

Kinsella testified during a sworn statement and at the sanction hearing that she

voluntarily entered into a treatment contract with Florida Lawyers Assistance, Inc.

(FLA) and has made progress in addressing the issues that led her to engage in

these acts of misconduct. She reported that her treatment involves debt

management and financial counseling. Kinsella admitted that she took the funds

from Kohl’s because she had unresolved debt. The referee found that Kinsella’s

financial problems existed at the time she applied for membership to The Florida




                                         -3-
Bar and continue to persist today. Lastly, the referee found that Kinsella

demonstrated significant remorse during her testimony at the sanction hearing.

      The referee’s report found Kinsella guilty of violating multiple Rules

Regulating the Florida Bar including: Rules 3-4.3 (Misconduct and Minor

Misconduct); 3-4.4 (Criminal Misconduct); 4-8.4(b) (Misconduct–Criminal

Conduct that Reflects Adversely on Honesty, Trustworthiness, or Fitness as a

Lawyer); and 4-8.4(c) (Misconduct–Conduct Involving Dishonesty, Fraud, Deceit,

or Misrepresentation).

      Based on his findings of fact, recommendations as to guilt, the aggravating

and mitigating factors, the Florida Standards for Imposing Lawyer Sanctions, and

case law, the referee recommended that Kinsella be suspended from the practice of

law for ten days, followed by a one-year period of probation with additional

conditions, and that she be ordered to pay the Bar’s costs of $1,616.60. On

February 15, 2018, this Court issued an order suspending Kinsella from the

practice of law and commanding her to show cause why the referee’s

recommended sanction should not be disapproved and a more severe sanction, up

to and including disbarment, be imposed.




                                        -4-
                                    ANALYSIS

      Neither Kinsella nor the Bar contest the appropriateness of the referee’s

findings of fact or recommendations as to guilt. Accordingly, we approve the

referee’s findings of fact and recommendations as to guilt.

      As for the appropriateness of the recommended sanction, Kinsella contends

that this Court should approve the referee’s recommended discipline. The Bar,

conversely, contends that this Court should disapprove the referee’s recommended

sanction and instead impose a suspension of at least ninety-one days. We

conclude, based on the extensive mitigation presented in this case, Kinsella’s

remorse, and the referee’s finding that Kinsella voluntarily sought out, consented

to, and is making progress in treatment with FLA, that a three-year suspension,

rather than disbarment, is the appropriate sanction.

      The standard of review for a referee’s recommendation as to discipline is as

follows:

             In reviewing a referee’s recommended discipline, the Court’s
      scope of review is broader than that afforded to the referee’s findings
      of fact because, ultimately, it is the Court’s responsibility to order the
      appropriate sanction. See Fla. Bar v. Anderson, 538 So. 2d 852, 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 caselaw and
      the [Florida] Standards for Imposing Lawyer Sanctions. See Fla. Bar
      v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).

Fla. Bar v. Ratiner, 46 So. 3d 35, 39 (Fla. 2010).



                                         -5-
      In determining the appropriate sanction in this case, the referee considered

several Standards for Imposing Lawyer Sanctions. Standard 5.1 provides that

disbarment is appropriate when a lawyer engages in intentional conduct involving

dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on

the lawyer’s fitness to practice law. Standard 5.12 provides that suspension is

appropriate when a lawyer knowingly engages in conduct not included in the

standard for disbarment and that seriously adversely reflects on the lawyer’s fitness

to practice law. Lastly, Standard 5.13 provides that a public reprimand is

appropriate when a lawyer knowingly engages in any other conduct involving

dishonesty, fraud, deceit, or misrepresentation that adversely reflects on the

lawyer’s fitness to practice law.

      We conclude that Standard 5.12 is the most appropriate standard for this

case. The critical distinction between Standard 5.12, which calls for suspension,

and Standard 5.1, which provides for disbarment, is whether the conduct “seriously

adversely reflects on the lawyer’s fitness to practice law.” Fla. Stds. Imposing

Law. Sancs. 5.1. In this case, both the State Attorney and the referee found that

Kinsella’s conduct warranted mercy. Although Kinsella was originally charged

with grand larceny, a felony, she was allowed to enter a plea to petit theft, a

misdemeanor, and received probation with adjudication withheld. Additionally,

despite Kinsella’s three acts of theft, the referee concluded that only a ten-day


                                         -6-
suspension was appropriate in this case. While we disagree with the length of

suspension recommended by the referee, we agree that suspension, rather than

disbarment, is appropriate.

      The referee found three aggravating factors—(1) Kinsella acted with a

dishonest or selfish motive; (2) she engaged in a pattern of misconduct; and (3) she

committed multiple offenses—and seven mitigating factors: (1) Kinsella did not

have a prior disciplinary record; (2) she suffered personal or emotional problems

not related to alcohol or drug abuse; (3) she made a timely good faith effort to

make restitution or rectify the consequences of her misconduct; (4) she made a full

and free disclosure to the Bar or had a cooperative attitude toward the proceedings;

(5) she is inexperienced in the practice of law; (6) other penalties or sanctions have

been imposed for the same conduct; and (7) she showed remorse.

      This Court has stated: “Like other factual findings, a referee’s findings of

mitigation and aggravation carry a presumption of correctness and will be upheld

unless clearly erroneous or without support in the record. A referee’s failure to

find that an aggravating factor or mitigating factor applies is due the same

deference.” Fla. Bar v. Germain, 957 So. 2d 613, 621 (Fla. 2007) (citation

omitted). Kinsella did not challenge the aggravating factors and in fact admitted

that she understood that what she was doing was illegal; however, the referee also

found that Kinsella fully and freely disclosed her misconduct to the Bar and took


                                         -7-
steps on her own accord, including entering into a contract with FLA, to address

her financial situation.

      The case law also supports imposing a lengthy suspension rather than

disbarment in this case. Florida Bar v. Anderson, 594 So. 2d 302 (Fla. 1992), and

Florida Bar v. Del Pino, 955 So. 2d 556 (Fla. 2007), are instructive. In Anderson,

like this case, the attorney misappropriated funds from her employer for personal

use. 594 So. 2d at 303. Anderson pled no contest to three third-degree felonies;

adjudication of guilt was withheld and she was placed on probation for three years.

Id. The referee recommended a three-year suspension; however, the Court found

that disbarment was warranted. Id. at 304. Like Kinsella, Anderson

misappropriated her employer’s funds, and her crimes were not committed in her

capacity as an attorney. Unlike Kinsella, however, Anderson was ultimately

convicted of three counts of felony theft, while Kinsella pled no contest to one

count of misdemeanor theft, with adjudication withheld. Again, it is significant

that the State chose not to pursue the more severe sanction of grand larceny against

Kinsella.

      In Del Pino, the attorney was suspended for three years after she participated

in the fraudulent transfer of a condominium, which resulted in a conviction for

mail fraud and tax evasion. 955 So. 2d at 558-59. Del Pino pled guilty to both

charges and was sentenced to three years of probation with conditions. Id. at 559.


                                        -8-
In imposing a three-year suspension, the Court noted several mitigating factors

significant to its analysis including evidence of an emotionally and physically

abusive romantic relationship. Id. at 562. Unlike Del Pino, this case involves less

severe crimes; however, similar to Del Pino, the referee found multiple,

compelling mitigating factors and decreased Kinsella’s recommended sanction

accordingly.

      Florida Bar v. De la Torre, 994 So. 2d 1032 (Fla. 2008), is also helpful. In

De la Torre, the Court held that engaging in felonious conduct warrants suspension

from the practice of law, even where adjudication of guilt is withheld. 994 So. 2d

at 1034. The attorney in that case entered no contest pleas to five criminal offenses

(possession of cocaine, battery on a law enforcement officer, resisting an officer

without violence, unlawful possession of cannabis, and possession of drug

paraphernalia), two of which were felonies; adjudication of guilt was withheld. Id.

Like this case, none of the criminal actions in De la Torre were related to the

practice of law. Finding substantial mitigation, the referee recommended that De

la Torre be suspended from the practice of law for ninety-one days followed by

three years of probation. Id. The Court found De la Torre’s evidence in mitigation

significant but ultimately imposed an eighteen-month suspension from the practice

of law. Id. at 1037-38.




                                        -9-
      Although this Court has begun to impose harsher sanctions for attorney

misconduct, even this Court’s most recent cases do not justify disbarring Kinsella.

See Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002). For example, this Court

disbarred attorney Randall Lawrence Gilbert for negligently supervising an

employee who stole millions of dollars from Gilbert’s trust account. Fla. Bar v.

Gilbert, 346 So. 3d 196 (Fla. 2018). In concluding that disbarment was the

appropriate sanction in Gilbert, this Court held, “As an attorney, he owed a duty to

the public and to his clients to safeguard their money. Instead, he flouted the

system by lying to a federal probation officer and allowing a nonattorney to hold

himself out as a law school graduate and a certified public accountant (CPA).” Id.

at 197. While her misconduct was inexcusable, Kinsella’s theft did not involve

client funds and was unrelated to the practice of law. Moreover, Kinsella

cooperated with authorities in the aftermath of her crime.

      The Court has stated that it expects “members of The Florida Bar to conduct

their personal business affairs with honesty and in accordance with the law.” Fla.

Bar v. Baker, 810 So. 2d 876, 882 (Fla. 2002); see also Fla. Bar v. Hosner, 520 So.

2d 567, 568 (Fla. 1988) (“[L]awyers are necessarily held to a higher standard of

conduct in business dealings than are nonlawyers.”). Here, Kinsella’s flagrant

abuse of the law merits a severe sanction. See, e.g., Fla. Bar v. Hall, 49 So. 3d

1254, 1261 (Fla. 2010).


                                        - 10 -
       However, on the whole, the referee also found substantial mitigation. First,

though Kinsella stole a total of three times, the total amount of her thefts was less

than $1,000. Kinsella pleaded no contest to one count of misdemeanor petit theft,

and the State dismissed the felony grand theft charge and the other misdemeanor

petit theft charge. Additionally, Kinsella successfully completed her one year of

probation in this case and completed all of the other tasks assigned by the court,

including payment of costs, payment of restitution to Kohl’s Department Store,

performance of fifty hours of community service, completion of a Vital Life Skills

Class, and not entering any Kohl’s location. Not even The Florida Bar suggested

that disbarment is the appropriate sanction, arguing in its brief in this Court that a

91-day suspension is the appropriate sanction. Accordingly, given all of these

circumstances, we conclude that the disciplinary sanction of a three-year

suspension, rather than disbarment, is warranted and appropriately serves the three-

pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the

Respondent; and (3) it is severe enough to deter other attorneys from similar

misconduct. See Fla. Bar v. Lawless, 640 So. 2d 1098, 1100 (Fla. 1994).

                                    CONCLUSION

       Accordingly, Kinsella is hereby suspended from the practice of law for a

period of three years. Because Kinsella is currently suspended, the suspension is

effective immediately.


                                          - 11 -
      Judgment is entered for The Florida Bar, 651 East Jefferson Street,

Tallahassee, Florida 32399-2300, for recovery of costs from Jacqueline Marie

Kinsella in the amount of $1,616.60, for which sum let execution issue.

      It is so ordered.

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

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. THE FILING OF A MOTION FOR REHEARING SHALL
NOT ALTER THE EFFECTIVE DATE OF THIS SUSPENSION.

CANADY, C.J., dissenting.

      I agree with Justice Lewis that Kinsella’s misconduct requires disbarment.

There is no reason to believe that a lawyer who has betrayed her employer by

stealing from the employer will not betray her clients by stealing from them. There

should be no place for thieves in The Florida Bar. As explained by Justice Lewis,

Kinsella’s misconduct falls squarely under Standard 5.11, which provides that

disbarment is the appropriate sanction. We should follow that standard; Kinsella

should be disbarred for her multiple acts of theft from her employer.

      I dissent from the imposition of a sanction less than disbarment.

LEWIS, J., concurs.




                                       - 12 -
 PARIENTE, J., dissenting.

      I begin with the acknowledgment that the conduct of Ms. Kinsella, freshly

out of law school and having passed the Florida Bar Exam, cannot be excused

when she stole $140, $100, and $520 from Kohl’s Department store where she was

working over a two-week period. But, as Kinsella does not attempt to justify her

actions, has shown extreme remorse, and never contested the charges filed by The

Florida Bar, the only question in this case is the appropriate sanction: Should

Kinsella be given a ten-day suspension, as recommended by the referee who

observed Ms. Kinsella, a ninety-one day suspension as requested by The Florida

Bar, a three-year suspension as held by the majority of this Court, or disbarred as

urged by the dissent?

      I agree with the per curiam opinion that any act of theft requires a sanction

more severe than a short nonrehabilitative suspension. In fact, Ms. Kinsella has

already been suspended by order of this Court.2 However, the circumstances of

this case do not compare to other theft cases where this Court has imposed three-

year suspensions or disbarment. A three-year suspension is simply



      2. Order to Show Cause (Fla. Feb. 15, 2018) (“[T]he Court has determined
that Respondent should receive at least a 91-day rehabilitative suspension. . . .
[T]he Court hereby commands Jacqueline Marie Kinsella to show cause on or
before March 19, 2018, why the referee’s recommended sanction should not be
disapproved and a more severe sanction, up to and including disbarment, be
imposed.”).

                                        - 13 -
disproportionate to the conduct in this case and I would impose the sanction sought

by The Florida Bar—a ninety-one day suspension.

      While certainly not dispositive, the prosecutor in Kinsella’s criminal case

determined that Kinsella should be able to enter a no contest plea to only the first-

degree misdemeanor charge of petit theft. Additionally, the prosecutor requested

that adjudication be withheld and the court impose probation with specific

conditions—all of with which Kinsella complied.3 Additionally, the referee found

multiple mitigating factors, which the per curiam opinion acknowledges stating,

“In this case, both the State Attorney and the referee found that Kinsella’s conduct

warranted mercy.” Per curiam op. at 6. However, the per curiam opinion uses this

and other mitigating factors to justify the imposition of a three-year suspension

rather than disbarment. I, conversely, would conclude that the extensive mitigation

in this case warrants the imposition of a rehabilitative suspension of one year,

which is far closer to the Bar’s request for a ninety-one day suspension.

      While neither the referee’s recommendations nor The Florida Bar’s

requested sanctions are binding on this Court, in my view, they should not be




      3. In order for the trial court to agree to adjudication being withheld, there
would have been a finding that “the defendant is not likely again to engage in a
criminal course of conduct and that the ends of justice and the welfare of society
do not require that the defendant presently suffer the penalty imposed by law.”
§ 948.01(2), Fla. Stat. (2018).


                                        - 14 -
ignored. I know this Court has become increasingly tough on attorneys who

violate the Rules Regulating the Florida Bar, but we must keep in mind the facts

and circumstances of each individual case and the purposes of Florida Bar

discipline.

                  A Three-Year Suspension Is Not Warranted

      As noted by the per curiam opinion, the referee found seven mitigating

factors, including that Kinsella showed remorse, made a timely good faith effort to

make restitution, made a full and free disclosure to the Bar, and had a cooperative

attitude toward the proceedings. In addition, she has taken substantial steps to

avoid problems in the future. All of these factors paint Kinsella as a young

attorney who exercised extremely poor judgment and has taken full responsibility

for her actions. Additionally, though the referee found three aggravating factors,

two of those factors—a pattern of misconduct and multiple acts of misconduct—

arise from the same underlying conduct.

      Moreover, in her response, Kinsella indicated that she had spent the majority

of her brief legal career before her suspension volunteering for the Legal Aid

Foundation, “providing legal advice through a helpline to those who cannot afford

a private attorney.” Resp. to Order to Show Cause at 4. Indeed, Kinsella “hopes to

continue work as a legal aid or non-profit attorney when the Court deems [her]

able.” Id. Kinsella “believes this is the best way for her to serve the public.” Id.


                                        - 15 -
      Our case law also supports this conclusion. The cases cited by the per

curiam opinion are distinguishable and consequently unhelpful in this case. First,

the misconduct in all three cases is significantly more egregious than the

misconduct in this case. For example, the attorney in Florida Bar v. Anderson,

594 So. 2d 302 (Fla. 1992), pleaded no contest to three third-degree felony

charges, for which adjudication was withheld, while the attorney in Florida Bar v.

De la Torre, 994 So. 2d 1032, 1033-34 (Fla. 2008), entered no contest pleas to five

criminal offenses, two of which were felonies, and adjudication was withheld.

Anderson, 594 So. 2d at 303; De la Torre, 994 So. 2d at 1033-34. Conversely, in

this case, Kinsella pled no contest to one misdemeanor charge of petit theft and

adjudication of guilt was withheld. Additionally, the attorney in Florida Bar v.

Del Pino, 955 So. 2d 556 (Fla. 2007), was suspended for three years following a

conviction for mail fraud and tax evasion. Id. at 558. Certainly Kinsella stealing

less than $1,000 from her employer, while serious, is not the same kind or degree

of misconduct as that of Del Pino.

      Indeed, there does not appear to be a case from this Court that is directly on

point. However, examining the conduct in the following cases illustrates that

Kinsella’s misconduct does not rise to that of attorneys who have historically been

suspended from the practice of law for three years. Kinsella’s misconduct is




                                       - 16 -
considerably less severe than that of other attorneys who have received equal or

even lesser sanctions.

      For example, in Florida Bar v. Arcia, 848 So. 2d 296 (Fla. 2003), this Court

held that an attorney’s theft of funds from his law firm employer warranted a three-

year suspension, followed by a three-year probationary period. Specifically, while

Arcia was employed as an associate at the law firm of Zarco and Pardo, P.A., he

formed his own one-man law firm, which was in direct competition with Zarco and

Pardo, P.A. Id. at 297. Arcia solicited clients from Zarco and Pardo for his own

benefit by intercepting telephone calls directed to the firm. Additionally, on

several occasions he deposited fees he had obtained representing Zarco and

Pardo’s clients or prospective clients into his solo-firm’s bank account. Id. Arcia

admitted “to depriving the firm of about $62,000 in legal fees. During the 1 ½ to

2-year span of Arcia’s misconduct, the firm paid him bonuses.” Id.

      Likewise, in Florida Bar v. Winters, 104 So. 3d 299 (Fla. 2012), two

attorneys participated in the following misconduct:

      Winters and Yonker made secret plans to leave the Mulholland Firm
      and begin practicing together, and that in the process, Winters and
      Yonker: (1) themselves and through a former paralegal for the
      Mulholland Firm, solicited Mulholland Firm clients to terminate
      representation by the Mulholland Firm and be represented by Winters’
      and Yonker’s new firm; (2) made misrepresentations to the
      Mulholland Firm and to Mulholland Firm clients; (3) made copies of
      and took possession of Mulholland Firm client files without
      authorization; and (4) improperly used a third attorney’s name, who


                                       - 17 -
      never actually joined the new firm, in their new firm name on
      documents.

Id. at 300. Ultimately, the Court imposed a ninety-one day suspension for Winters

and a sixty-day nonrehabilitative suspension for Yonker. Id. at 303.

      Most recently, this Court imposed a one-year suspension for an attorney who

converted $500 in client funds for his own use. See Fla. Bar v. Wynn, 210 So. 3d

1271, 1272 (Fla. 2017). In doing so, we noted that “misuse or misappropriation of

client funds is one of the most serious offenses a lawyer can commit.” Id. at 1274.

      Likewise, just this year, we approved an eighteen-month suspension for an

attorney who knowingly signed and provided to a lender a real estate closing

statement containing incorrect statements about closing funds. Fla. Bar v. Perez,

No. SC16-111, 2018 WL 2731612, at *1 (Fla. Jun. 7, 2018). In that case, Perez

prepared a closing statement reflecting that approximately $3 million in cash

would be brought to the closing by the buyer, when, in fact, the total of the buyer’s

contribution consisted of $1.5 million in cash and a promissory note in favor of the

seller of approximately $1.5 million. Order at 1, Fla. Bar v. Perez, No. SC16-111

(Fla. Oct. 20, 2017) (disapproving referee’s report and remanding back to the

referee for additional proceedings). Perez acknowledged that he purposely

reflected the down payment inaccurately, but did not see a problem with doing so

because he was directed to do so by the loan officer. Id. Certainly, Kinsella’s acts

of dishonesty are not so much more egregious than Perez’s to warrant double the

                                        - 18 -
length of suspension. Additionally, there is far more mitigation in this case than

was present in Perez.

                          Disbarment Is Not Warranted

      I also disagree with the dissenting views that disbarment is warranted in this

case and take particular issue with the assertion of Justice Lewis that “[t]he

imposition of a three-year suspension, rather than disbarment, is a black eye on this

Court’s attorney misconduct jurisprudence.” Dissenting op. at 22 (Lewis, J.); see

also dissenting op. at 12 (Canady, C.J.). For obvious reasons, the facts in this case

are far from analogous to cases where we have disbarred lawyers for trust account

violations. Indeed, the majority of the cases upon which Justice Lewis relies

involve just that—trust account violations, misappropriation of client funds, or

other kinds of theft related to the practice of law. See dissenting op. at 22-24

(Lewis, J.).4 While Kinsella’s conduct cannot and should not go unpunished, this



       4. The dissenting opinion of Justice Lewis relies on Anderson, because the
theft there was not related to the practice of law. 594 So. 2d at 303. Indeed,
Anderson involved an attorney who “converted publicly owned funds to pay off
her personal credit-card debt” while working as an executive assistant with the
Tampa Housing Authority. Id. However, in that case, The Florida Bar specifically
requested disbarment and the referee recommended a three-year suspension. Id. at
302. Additionally, and significantly, this Court held that it was the theft of public
funds that made it analogous to the theft of trust account funds. Id. at 303. In
addition, the illegal conduct in that case was far more sophisticated as the attorney
“forged a signature on two checks and submitted three Housing Authority money
orders in payment for debts [she] owed” her credit card company. Id. The total
amount involved in that case was $4,500 in public money. Id.


                                        - 19 -
case of a young woman who made a serious mistake unrelated to the practice of

law, has made full restitution, and has exhibited extreme remorse is not

comparable to cases involving misuse of client or law firm funds where this Court

has disbarred attorneys.

      In fact, the three-year suspension that the Court imposes is the longest

rehabilitative suspension before disbarment, which is a five-year period and then

requires the attorney to retake The Florida Bar examination and demonstrate

rehabilitation. This harsh sanction requires that Kinsella would have to apply to

The Florida Bar for reinstatement following the suspension and prove significant

rehabilitation. See R. Regulating Fla. Bar 3-5.1(e). There is no guarantee that

Kinsella would be reinstated, especially where there were acts of dishonesty. See

R. Regulating Fla. Bar 3-7.10(f)(1) (“A record manifesting a deficiency in the

honesty, trustworthiness, diligence, or reliability of a petitioner may constitute a

basis for denial of reinstatement.”). Finally, Kinsella would not be reinstated

absent positive action showing rehabilitation and “personal assurances, supported

by corroborating evidence, of a desire and intention to conduct [herself] in an

exemplary fashion in the future.” See R. Regulating Fla. Bar 3-7.10(f)(3)(E).

                                  CONCLUSION

      The Court’s imposition of a three-year suspension is simply not supported

by this Court’s precedent. Moreover, I cannot agree that the harsh sanction


                                        - 20 -
imposed in this case serves the three-pronged purpose of attorney discipline: (1) it

is fair to society; (2) it is fair to the respondent; and (3) it is severe enough to deter

other attorneys from similar misconduct. See Fla. Bar v. Lawless, 640 So. 2d

1098, 1100 (Fla. 1994).

       Kinsella was punished in a criminal court of law and has paid her debt to

society. Both the State Attorney and the referee concluded that Kinsella’s

misconduct did not warrant a severe sanction. Even the Bar has not advocated for

a suspension greater than ninety-one days in this case. In light of all of these

findings, it is clear that the Court’s imposition of a three-year suspension is

unnecessary and overly harsh. And, certainly, the findings do not justify the

dissents’ view that disbarment is warranted. Thus, I would follow the Bar’s

recommendation and impose a suspension ranging anywhere from ninety-one days

to one year.

       Accordingly, I dissent.

LEWIS, J., dissenting.

       I dissent to this Court’s imposition of a mere three-year suspension. In my

view, Kinsella’s unethical conduct warrants disbarment. Attorneys who commit

the egregious act of theft or misappropriating monies are appropriately disbarred.

See, e.g., Fla. Bar v. Anderson, 594 So. 2d 302 (Fla. 1992). The majority attempts

to minimize Kinsella’s conduct as somehow soluble given her student loan debt. I


                                          - 21 -
find such flimsy mollifications to be unavailing. The “extensive” mitigation cited

by the majority does not and cannot overcome the serious nature of the offenses

that Kinsella committed. See majority op. at 5.5 The imposition of a three-year

suspension, rather than disbarment, is a black eye on this Court’s attorney

misconduct jurisprudence. The overwhelming majority of cases involving theft

have resulted in disbarment. See, e.g., Fla. Bar v. Spear, 887 So. 2d 1242 (Fla.

2004); Fla. Bar v. Shanzer, 572 So. 2d 1382 (Fla. 1991). The majority’s sanction

of suspension is not authorized under the Florida Standards for Imposing Lawyer

Sanctions (“the Standards”) and does not have a reasonable basis in existing case

law.

       Kinsella was employed at Kohl’s Department Store and was entrusted with

handling the store’s cash register. The fact that none of the stolen funds were

related to the practice of law is irrelevant; Kinsella stole from those who entrusted

her to handle money. See Fla. Bar v. Arcia, 848 So. 2d 296, 300 (Fla. 2003)

(“[F]or purposes of attorney discipline, theft of firm funds is serious enough to

warrant disbarment under most circumstances.”). Further, Kinsella was entrusted

with handling Kohl’s money in the same way that she would be entrusted to handle




     5. To this point, the majority’s characterization of Kinsella’s post-arrest
conduct as constituting “substantial” mitigation is misguided. An individual’s
completion of probation should not be characterized as “substantial” mitigation.


                                        - 22 -
client funds; and, where conversion of client funds is concerned, the standards are

clear:

         4.11 Disbarment is appropriate when a lawyer intentionally or
         knowingly converts client property regardless of injury or potential
         injury.

Fla. Stds. Imposing Law. Sancs. 4.1; see also Fla. Bar v. Bloom, 972 So. 2d 172,

178 (Fla. 2007) (holding disbarment was the appropriate sanction for misconduct

that included misappropriation of funds and criminal charges of theft).

         Likewise, Standard 5.1 provides that disbarment is appropriate when a

lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or

misrepresentation that seriously adversely reflects on the lawyer’s fitness to

practice law. Fla. Stds. Imposing Law. Sancs. 5.11 (“Disbarment is appropriate

when . . . a lawyer engages in . . . theft.”). This Court has repeatedly held that

misuse of funds is one of the most serious offenses a lawyer can commit and that

disbarment is presumed to be the appropriate punishment. Shanzer, 572 So. 2d at

1383 (citing Fla. Bar v. Farbstein, 570 So. 2d 933 (Fla. 1990); Fla. Bar v.

Newman, 513 So. 2d 656 (Fla. 1987)); see also Fla. Bar v. Spears, 786 So. 2d 516

(Fla. 2001) (disbarment was warranted sanction for attorney who misappropriated

client funds while under investigation for other similar misconduct); Fla. Bar v.

Travis, 765 So. 2d 689, 691 (Fla. 2000) (disbarment was warranted for deliberately

misappropriating clients’ funds over a substantial period of time and noting that


                                          - 23 -
“[t]he presumption of disbarment is exceptionally weighty when the attorney’s

misuse is intentional”); Fla. Bar v. Fitzgerald, 541 So. 2d 602, 606 (Fla. 1989)

(disbarment ordered where attorney misappropriated trust funds despite unrebutted

evidence of attorney’s rehabilitation). Here, Kinsella stole money from Kohl’s

cash registers on three separate occasions. She was later arrested and charged with

felony grand larceny. Thus, the presumptive sanction under the Standards is

disbarment, not suspension.

      Again, the fact that Kinsella’s theft from her employer was not related to the

practice of law is irrelevant. In my view, Justice Pariente’s attempt to draw

distinctions between where criminal conduct occurs and different levels of criminal

sophistication is fanciful at best. An individual physically removing money from a

cash register and an individual conducting an electronic credit card scam are both

thieves. Further, the notion that Kinsella’s conduct is not comparable to other

cases involving misuse of client or law firm funds is severely misguided. Attempts

to distinguish thefts related or unrelated to the practice of law ignore the common

denominator at issue—theft. A thief is a thief. Kinsella’s conduct was dishonest

and unlawful and hollow explanations pointing to an individual’s circumstances

cannot diminish the fact that such a deceitful act occurred on three separate

occasions.




                                       - 24 -
      Let it be clear, debt can be no excuse for such egregious conduct—many

recent law school graduates have unresolved debt. Negative public sentiment

toward the legal profession would surely increase if those who make the perilous

mistake of engaging in this type of behavior are not rightly punished. An

individual cannot be both a lawyer and a thief.

      This Court has a responsibility to protect the public’s trust and confidence in

the legal profession. Those who are guilty of theft tarnish all of us. To impose

anything other than disbarment is a disservice to Florida’s court system and

democracy. Kinsella’s three-year suspension undermines professionalism and

creates fertile ground for public distrust.

      Kinsella should be disbarred. For these reasons, I dissent.

Original Proceeding – The Florida Bar

Joshua E. Doyle, Executive Director, Tallahassee, Florida, Kenneth H. P. Bryk,
Bar Counsel, Orlando, Florida, and Adria E. Quintela, Staff Counsel, The Florida
Bar, Sunrise, Florida,

      for Complainant

Jacqueline Marie Kinsella, pro se, Goldenrod, Florida,

      for Respondent




                                         - 25 -
