          Supreme Court of Florida
                                  ____________

                                  No. SC14-2049
                                  ____________

                             THE FLORIDA BAR,
                                Complainant,

                                        vs.

                             CYRUS A. BISCHOFF,
                                 Respondent.

                                 [March 2, 2017]

PER CURIAM.

      We have for review a referee’s report recommending that Respondent, Cyrus

A. Bischoff, be found guilty of professional misconduct in violation of the Rules

Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for

one year. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the

referee’s findings of fact, recommendations as to guilt, and the recommended

sanction, and suspend Bischoff for one year.

                                     FACTS

      In October 2014, The Florida Bar filed a complaint against Respondent

Bischoff, alleging that he engaged in misconduct in violation of the Bar Rules. A
referee was appointed to consider the matter. Following a hearing, the referee

submitted her report for the Court’s review, in which she made the following

findings and recommendations.

      Bischoff was retained by a client to represent her in a lawsuit filed in the

United States District Court for the Southern District of Florida. Bischoff filed

three versions of the complaint in 2011 and 2012; the final version, the Second

Amended Complaint, raised claims against three defendants for whistleblower

protection, unlawful discharge, and malicious or wrongful garnishment. On May

24, 2013, Judge Robert Scola issued an “Order Dismissing Case with Prejudice,”

finding that Bischoff and the client had engaged in discovery violations that

demonstrated a clear pattern of contumacious conduct. Subsequently, on February

24, 2014, Magistrate Judge Alicia Otazo-Reyes issued an order granting a motion

for attorney’s fees against Bischoff individually, finding that Bischoff knowingly

and recklessly pursued frivolous claims, engaged in discovery-related misconduct,

and failed to comply with court orders. As a sanction, the magistrate ordered

Bischoff to pay $77,790.49 in fees and costs.

      Bischoff’s conduct in the federal case is detailed extensively in Judge

Scola’s and Magistrate Judge Otazo-Reyes’s orders. Bischoff and his client did

not respond to the defendants’ requests for discovery, and they refused to attend

the client’s deposition. The defendants were forced to file motions seeking to


                                        -2-
compel discovery and the client’s deposition. On November 19, 2012, Bischoff

electronically filed a “Notice of Serving Responses to Discovery Requests.”

Magistrate Judge Otazo-Reyes found that Bischoff, using the federal court’s

electronic filing system, linked the Notice to a pending motion to compel written

discovery; as a result, the magistrate judge believed that Bischoff had provided the

requested discovery materials, and she denied the motion to compel as moot. The

defendants then filed a motion for reconsideration asserting that Bischoff had not

actually submitted any responses to any of the pending discovery requests. The

magistrate judge held a hearing on the motion for reconsideration, as well as on

other pending discovery motions, on December 21, 2012. Bischoff failed to attend

the hearing, but he appeared by telephone. Following this hearing, the magistrate

judge entered an order granting motions to compel the client’s deposition,

requiring her to sit for deposition no later than January 31, 2013, and ordering

Bischoff and the client to fully respond to the outstanding discovery requests,

without objections, by January 7, 2013; the order reserved ruling on the issue of

sanctions.

      Following the December 2012 order, in early 2013, the defendants filed a

motion to dismiss asserting that Bischoff either did not provide discovery materials

by January 7, or that the material he did provide was incomplete or insufficient.

The motion also asserted that Bischoff was proposing to schedule the client’s


                                        -3-
deposition after the January 31 deadline. Ultimately, the client did sit for her

deposition on January 31, 2013. However, she refused to answer any questions

submitted by two of the three defendants. In a telephonic hearing, Magistrate

Judge Otazo-Reyes clarified that her order of December 21, 2012, required the

client to appear for questioning by all three defendants. Nonetheless, the client,

counseled by Bischoff, continued to refuse questioning. Several days after the

deposition concluded, Bischoff filed an objection to the magistrate judge’s

telephonic ruling. Judge Scola overruled the objection, finding that Bischoff’s

arguments, and his persistence in claiming that Magistrate Judge Otazo-Reyes’s

own order did not mean what she said it meant, showed a profound lack of respect

for the court.

      On February 12, 2013, Magistrate Judge Otazo-Reyes held a second

discovery hearing. During this hearing, the magistrate judge found, among other

things: that there was no justification for the client’s refusal to appear for her

deposition in November 2012; that Bischoff and the client did not fully comply

with the magistrate judge’s order of December 21, 2012, setting discovery

deadlines; that Bischoff’s November 19, 2012, notice of serving responses to

discovery, when in fact no discovery responses were provided, was misleading;

and that Bischoff and the client had showed flagrant disrespect for the court.

Based on these findings, Magistrate Judge Otazo-Reyes directed the defendants to


                                          -4-
submit affidavits documenting their attorneys’ fees and costs. She allowed

Bischoff and the client one week to respond to the affidavits; however, Bischoff

and the client did not respond within the time allowed. Accordingly, on March 20,

2013, the magistrate judge issued an order awarding the defendants attorneys’ fees

and costs; the client was ordered to pay the sanction by April 30, 2013.

      The client did not pay the attorneys’ fee award by the April 30 deadline, and

on May 14, 2013, Judge Scola issued an order directing her to show cause as to

why the case should not be dismissed. On May 24, 2013, Judge Scola issued an

order dismissing the case with prejudice. In this dismissal order, Judge Scola

found that Bischoff’s November 19, 2012, notice of serving discovery responses,

when no such responses were provided, was a misrepresentation so blatant and

deceitful that it must be viewed as an intentional misrepresentation to the court.

Judge Scola also found that the client’s appeals of the magistrate judge’s orders,

through Bischoff as her attorney, showed a profound lack of respect for the court.

Accordingly, Judge Scola concluded that the client had engaged in a clear pattern

of contumacious conduct that warranted the dismissal of her case.

      Following the dismissal, Bischoff withdrew as counsel for the client. In

October 2013, two of the defendants filed a motion for attorney’s fees and costs,




                                        -5-
pursuant to 28 U.S.C. § 1927.1 Magistrate Judge Otazo-Reyes held a hearing on

the motion, and on February 24, 2014, she issued her order directing Bischoff to

pay $77,790.49 in attorney’s fees.

      In the disciplinary case at hand, it is clear that the referee relied on Judge

Scola’s and Magistrate Judge Otazo-Reyes’s detailed orders in making her findings

of fact.2 However, it is also apparent that the referee independently reviewed the

docket and proceedings in the federal suit, and used this information to form her

own conclusions. Indeed, the referee found that Bischoff’s conduct demonstrated a

lack of competency in handling the client’s case, and that his misrepresentations to

the court and other conduct served to obstruct the discovery process.

      First, the referee found that Bischoff lacked the legal knowledge and skill

necessary to represent the client. Though Bischoff had practiced in federal court

for seven years before the client’s case, the referee found his actions demonstrated

that he did not understand the basic requirements to litigate cases in a federal court.




       1. 28 U.S.C. § 1927 provides that an attorney “who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.”

      2. This Court has stated that “the referee in a disciplinary proceeding may
consider judgments entered in other tribunals, and may properly rely on such
judgments to support his or her findings of fact.” Fla. Bar v. Rosenberg, 169 So.
3d 1155, 1159 (Fla. 2015); Fla. Bar v. Gwynn, 94 So. 3d 425, 430 (Fla. 2012).


                                         -6-
He did not comply with the Federal Rules of Civil Procedure in amending his

complaint, and he made no effort to communicate with opposing counsel in filing

motions for extensions of time. The referee further found that Bischoff failed to

inform himself on the applicable law. Every version of the complaint that he filed

failed to allege whether the client had exhausted her administrative remedies. And,

even more significantly, each version of the complaint also failed to allege an

essential element of the wrongful wage garnishment claim—that the client had

been involuntarily separated from a prior employer, making her exempt from

garnishment under the statute.3 Additionally, the referee found that Bischoff filed

a motion to certify class without even minimally investigating whether other class

members existed. Finally, he filed frivolous objections or appeals to Judge Scola

challenging Magistrate Judge Otazo-Reyes’s authority to rule on motions. The

referee found that the magistrate judge explained to Bischoff the law and the scope



       3. On this point, the referee noted that there was evidence the client asked to
be terminated by the prior employer. Bischoff testified that he did not recall
whether he discussed the involuntary separation issue with his client. The referee
found this statement was not credible, concluding: “The undersigned finds that, if,
Mr. Bischoff had not in fact discussed [the client’s] separation from her employer
and investigated the issue to any depth he would have been at the very least
ineffective, negligent, and/or naïve.” The referee noted Bischoff may have been
able to allege that, because of a hostile working environment, the client’s request to
be terminated was not truly voluntary. But, the referee found that Bischoff’s
failure to raise the issue at all “speaks volumes about his legitimate intention and
that he did in fact possess the knowledge that he could not meet the threshold
requirements under the law.”


                                        -7-
of her authority to make recommendations on dispositive motions; nonetheless,

Bischoff’s appeals continued to challenge her authority. The referee noted that

while Bischoff did have a duty to use the law for the fullest benefit of his client’s

cause, he also had a duty not to abuse the legal procedure.

      In addition to his lack of competence, the referee found that Bischoff

obstructed the discovery process, refused to comply with court orders, filed

frivolous pleadings and objections to the magistrate judge’s rulings, and made false

statements to the federal court. Bischoff did not timely comply with any of the

defendants’ requests for production of documents or motions to compel written

discovery, and he refused to produce his client for a deposition until the last

possible day. He filed frivolous objections or appeals regarding Magistrate Judge

Otazo-Reyes’s orders, raising challenges to her authority to rule. And he refused

to comply with several of the magistrate judge’s orders—indeed, the referee noted

that instead of moving for a stay of execution, or pursuing any one of the numerous

avenues available to him, Bischoff simply chose not to comply.

      We note in particular that the referee found Bischoff made

misrepresentations to the federal court. On November 19, 2012, he filed a notice

of serving responses to discovery requests, in which he misrepresented to the

magistrate judge that he had complied with a motion to compel discovery when he

had not. Given his actions, the referee found that Bischoff, in effect, intentionally


                                         -8-
concealed discovery documents. Additionally, the referee found that Bischoff

failed to appear for the discovery hearing on December 21, 2012, and that he gave

inconsistent reasons for his absence. Bischoff initially told Magistrate Judge

Otazo-Reyes that he did not receive notice of the hearing. This contention was

refuted by entries on the docket showing that Bischoff was electronically served

with two orders setting the discovery matters for hearing. Bischoff then stated that

he received an e-mail from opposing counsel indicating that the hearing would be

reset; however, Bischoff knew, or should have known, that in a federal court only

the judge is authorized to reset a hearing, and that the magistrate judge had not

issued any such order. Ultimately, the referee found that Bischoff was leaving for

a vacation on the day of the hearing, and he simply chose not to attend.

      Based on these facts, the referee recommends that Bischoff be found guilty

of violating Bar Rules 4-1.1 (a lawyer shall provide competent representation to a

client); 4-3.1 (a lawyer shall not bring or defend a proceeding, or assert or

controvert an issue therein, unless there is a basis in law and fact for doing so that

is not frivolous); 4-3.3 (a lawyer shall not knowingly make a false statement of fact

or law to a tribunal or fail to correct a false statement of material fact or law

previously made to the tribunal by the lawyer); 4-3.4(a) (a lawyer must not

unlawfully obstruct another party’s access to evidence or otherwise unlawfully

alter, destroy, or conceal a document or other material that the lawyer knows or


                                          -9-
reasonably should know is relevant to a pending or a reasonably foreseeable

proceeding); 4-3.4(c) (a lawyer must not knowingly disobey an obligation under

the rules of a tribunal except for an open refusal based on an assertion that no valid

obligation exists); 4-3.4(d) (a lawyer must not, in pretrial procedure, make a

frivolous discovery request or intentionally fail to comply with a legally proper

discovery request by an opposing party); and 4-8.4(d) (a lawyer shall not engage in

conduct in connection with the practice of law that is prejudicial to the

administration of justice).

      The referee found six aggravating factors in this case: (1) dishonest or

selfish motive; (2) pattern of misconduct; (3) multiple offenses; (4) refusal to

acknowledge the wrongful nature of the conduct; (5) vulnerability of the victim;

and (6) substantial experience in the practice of law. The referee also considered

three mitigating factors: (1) no prior disciplinary record; (2) evidence showing

good character and reputation; and (3) other penalties or sanctions.

      Ultimately, based on her findings of fact, recommendations as to guilt, the

aggravating and mitigating factors, and case law, the referee recommended that

Bischoff be suspended from the practice of law for one year, and that he be ordered

to pay the Bar’s costs. Bischoff seeks review of the referee’s recommendations,

challenging the fairness of the proceedings before the referee, the referee’s

recommendations as to guilt, and the recommended sanction.


                                        - 10 -
                                     ANALYSIS

      Bischoff first argues that he was denied a fair and impartial hearing before

the referee, and that the cumulative effect of the referee’s procedural errors require

that the case be remanded for a new hearing. We do not agree. Bischoff primarily

relies on two alleged errors: (1) although he elected not to testify, the referee

questioned him after the parties rested their cases, he was not placed under oath for

such questioning, and the referee relied on Bischoff’s answers to these questions in

making her findings of fact and recommendations as to guilt; and (2) the Bar was

also allowed to cross-examine Bischoff after it rested its case. This Court has long

held that Bar disciplinary cases are neither civil nor criminal, but rather are “quasi-

judicial administrative proceedings.” See R. Regulating Fla. Bar 3-7.6(f)(1); Fla.

Bar v. Vannier, 498 So. 2d 896, 898 (Fla. 1986). Accordingly, the referee is not

bound by the technical rules of evidence, hearsay evidence generally is admissible,

and the respondent has no right to confront witnesses. Vannier, 498 So. 2d at 898.

Moreover, Bar Rule 3-7.6(j) provides that, unless the respondent in a disciplinary

case claims a privilege or right properly available under a federal or state law, the

respondent may be called as a witness by the Bar and questioned on “all matters

material to the issues.” Construing these principles together, we conclude the

referee is authorized to ask questions of the respondent to clarify relevant facts and

issues, even if the respondent does not testify as a witness. And, in any


                                         - 11 -
disciplinary proceeding, the respondent has an obligation to answer the referee’s

questions truthfully, regardless of whether he or she is placed under oath. See R.

Regulating Fla. Bar 4-8.1(a) (a lawyer in connection with a disciplinary matter

shall not knowingly make a false statement of material fact).

      Here, the referee asked Bischoff a series of questions after both parties

rested their cases. Bischoff’s counsel did not raise any objection to the referee’s

questions. In fact, counsel stated he had no objection to the questioning. As a

result, Bischoff has waived the right to challenge the referee’s questioning now.

See Fla. Bar v. Behm, 41 So. 3d 136, 143 (Fla. 2010) (concluding that attorney

waived review of issue where the issue was not presented to the referee). Counsel

did object when the referee permitted the Bar to cross-examine Bischoff, arguing

that the Bar had concluded the evidentiary portion of its case. Although the referee

allowed the cross-examination to proceed over counsel’s standing objection, she

also offered Bischoff’s counsel the same opportunity to question Bischoff—though

he too had rested his case—in order to clarify any issues that he felt should be

addressed. Accordingly, there is no evidence that Bischoff was prejudiced by the

Bar’s cross-examination.

      Turning next to the referee’s recommendations as to guilt, Bischoff

challenges the referee’s recommendation that he be found guilty of violating Bar

Rules 4-1.1, 4-3.1, 4-3.3, and 4-3.4(a), (c), and (d). To the extent he challenges the


                                        - 12 -
referee’s findings of fact as to each rule violation, the Court’s review of such

matters is limited, and if a referee’s findings of fact are supported by competent,

substantial evidence in the record, this Court will not reweigh the evidence and

substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So. 2d 79,

86 (Fla. 2000); see also Fla. Bar v. Jordan, 705 So. 2d 1387, 1390 (Fla. 1998). To

the extent Bischoff challenges the recommendations as to guilt, the Court has

stated that the referee’s factual findings must be sufficient under the applicable

rules to support the recommendations. See Fla. Bar v. Shoureas, 913 So. 2d 554,

557-58 (Fla. 2005).

      As we have discussed, Bischoff’s conduct during the client’s case is well

documented in Judge Scola’s May 24, 2013, “Order Dismissing Case with

Prejudice,” and in Magistrate Judge Otazo-Reyes’s February 24, 2014, order

imposing sanctions. We conclude that the facts laid out in these orders, and

supported by the referee’s own review of the record, provide ample support for the

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

competently on behalf of the client, in violation of Bar Rule 4-1.1, when he failed

to comply with the Federal Rules of Civil Procedure, failed to adequately research

his client’s causes of action to know what elements were required, and filed

objections and appeals challenging Magistrate Judge Otazo-Reyes’s authority to

hear specific motions, where her authority to hear those motions and enter orders


                                        - 13 -
or make recommendations was specifically outlined in federal law. We agree with

the referee that these objections and appeals, and other of Bischoff’s pleadings,

were also frivolous, in violation of Bar Rule 4-3.1. Additionally, Bischoff made

false statements of fact or law to a tribunal, in violation of Bar Rule 4-3.3, when he

filed a false notice indicating that he had served discovery responses, when in fact

he did not provide any such responses. And finally, Bischoff obstructed the

defendants’ access to evidence, knowingly disobeyed court orders, and refused to

comply with legally proper discovery requests, in violation of Bar Rules 4-3.4(a),

(c), and (d), when he ignored motions for discovery filed by the defendants and

refused to provide the discovery materials; ignored the magistrate’s discovery

order of December 21, 2012, directing the client to file responses to discovery

requests without objections by January 7, 2013; and counseled his client during her

deposition on January 31, 2013, to ignore the magistrate’s direct order to answer

questions from all three defendants. Bischoff’s discovery violations significantly

delayed the client’s lawsuit, and ultimately led Judge Scola to dismiss the suit.

Given this evidence in the record, we approve the referee’s findings of fact and

recommendations as to guilt in full.

      Based on his misconduct, the referee recommends that Bischoff be

suspended from the practice of law for one year. Bischoff urges the Court to

disapprove this sanction. In reviewing a referee’s recommended discipline, this


                                        - 14 -
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 case law and the Florida Standards for Imposing Lawyer Sanctions. See

Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).

      The referee’s findings in this case demonstrate that Bischoff knowingly and

recklessly pursued frivolous claims, he repeatedly engaged in discovery-related

misconduct, and he failed to comply with court orders and rules. Our decision in

Florida Bar v. Rosenberg, 169 So. 3d 1155 (Fla. 2015), provides guidance. In that

case, Rosenberg represented the defendants in a breach of contract case. He

refused to timely respond to the plaintiffs’ requests for discovery, and he filed

objections to those discovery requests that continued to raise objections that the

presiding judge had overruled or concluded were waived. As a result, the judge

issued an order granting the plaintiffs’ motion for sanctions. Id. at 1155. The

judge also directed Rosenberg to show cause why he should not be sanctioned for

bad faith conduct, and set a hearing on the matter. Rosenberg declined to testify at

the hearing. Accordingly, the judge issued an order imposing attorney’s fees. At




                                         - 15 -
the time the Court considered his case, Rosenberg still had not paid any portion of

the attorney’s fees. Id. at 1158.

       On review in Rosenberg, the Court approved the referee’s recommendations

as to guilt, noting:

       Rosenberg seeks to relitigate Judge Gerber’s findings and conclusions
       as to his bad faith conduct in the civil litigation. Such arguments are
       not proper in this disciplinary case. The issue here is not whether
       Rosenberg properly raised certain objections to the plaintiffs’ motions
       to compel production; however, he may not repeatedly continue to
       raise those same objections after they have already been considered
       and ruled upon, and he may not refuse to comply with the numerous
       orders to compel entered by the circuit courts in both Miami–Dade
       County and Palm Beach County.

Id. at 1160. The Court, however, disapproved the referee’s recommended

sanction, finding that “Rosenberg’s repeated failures to comply with court orders

and his bad faith conduct, together with the aggravating factors found by the

referee, warrant a suspension longer than ninety-one days.” Id. at 1161-62.

Indeed, the Court concluded that for more than a year, Rosenberg had refused to

comply with numerous circuit court orders requiring him to produce documents; he

continued to raise objections to production that had already been considered and

ruled upon by the circuit court; he consistently refused to accept the wrongful

nature of his actions; and he had not paid any portion of the sanctions entered

against him, even though the circuit court’s order was affirmed on appeal. Id. at

1162. The Court concluded that a one-year suspension was appropriate.


                                        - 16 -
      We conclude that Bischoff’s conduct warrants the same sanction as that in

Rosenberg. Bischoff, like Rosenberg, refused to respond to valid and legally

proper discovery requests, and he did not comply with court orders, resulting in

sanctions. We note that Bischoff also made misrepresentations to a federal court,

and that his conduct contributed to the dismissal of his client’s case with prejudice.

Nonetheless, we have considered the referee’s findings in aggravation and

mitigation, particularly the referee’s finding in the report that the client was

challenging to work with, and the fact that Bischoff has paid in full the sanctions

ordered by Magistrate Judge Otazo-Reyes, and we conclude that a one-year

suspension is appropriate.

                                   CONCLUSION

      Accordingly, Cyrus A. Bischoff is hereby suspended for one year. The

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

Bischoff can close out his practice and protect the interests of existing clients. If

Bischoff notifies this Court in writing that he 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. Bischoff shall fully comply with

Rule Regulating the Florida Bar 3-5.1(h). Further, Bischoff shall accept no new

business from the date this opinion is filed until he is reinstated.




                                         - 17 -
      Judgment is entered for The Florida Bar, 651 East Jefferson Street,

Tallahassee, Florida 32399-2300, for recovery of costs from Cyrus A. Bischoff in

the amount of $4,340.00, for which sum let execution issue.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and
POLSTON, JJ., concur.
LAWSON, J., did not participate.

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

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 Jennifer
R. Falcone, Bar Counsel, The Florida Bar, Miami, Florida,

      for Complainant

Alan Martin Medof, Boca Raton, Florida,

      for Respondent




                                        - 18 -
