          Supreme Court of Florida
                                   ____________

                                   No. SC15-385
                                   ____________

                              THE FLORIDA BAR,
                                 Complainant,

                                         vs.

                                 JEAN M. PICON,
                                   Respondent.

                                [December 8, 2016]

PER CURIAM.

      We have for review a referee’s report recommending that respondent, Jean

M. Picon, 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

ninety-one days. Picon has petitioned for review, challenging the sufficiency of

the referee’s report, the referee’s recommendations as to guilt, and the referee’s

recommended discipline. We have jurisdiction. See art. V, § 15, Fla. Const. For

the reasons that follow, we reject Picon’s challenges to the sufficiency of the

referee’s report and approve the referee’s findings of fact and recommendations of

guilt. However, we disapprove the referee’s recommended discipline as too lenient
in light of the number of acts of client neglect committed by Picon and her prior

disciplinary record. We instead impose a one-year suspension from the practice of

law.

                                     I. FACTS

       In February 2015, The Florida Bar filed a complaint against Picon alleging

that she, as counsel of record in three separate criminal cases, engaged in

misconduct in violation of several Bar Rules. A referee was appointed to consider

the Bar’s complaint. After conducting a hearing on both guilt and discipline, the

referee submitted a report for the Court’s review, in which he made the following

findings and recommendations.

       In State v. Smith, Picon, as counsel of record for the defendant, repeatedly

failed to timely appear for court proceedings before Judge Charles Roberts. On

one specific occasion, Judge Roberts directed the parties in the case to return to

court at a specific time to address matters outside the presence of the jury. Picon

failed to abide by Judge Roberts’ explicit instructions and returned to court tardy.

She also disregarded explicit instructions from Judge Roberts to file a pretrial

motion by a specific date before the commencement of trial. She instead filed the

motion at three o’clock in the morning the day trial was scheduled to commence.

Picon acknowledged in her testimony before the referee that she knew she was not

in compliance with Judge Roberts’ directive when she filed the motion.


                                        -2-
      Picon’s conduct in the Smith case ultimately resulted in Judge Roberts

initiating contempt proceedings against her. During those proceedings, Judge

Roberts stated:

      I can no longer tolerate this. It is impacting my ability to function as a
      judge in this division. It impacts my ability to service all the defense
      attorneys out there and their clients. It impacts witnesses and now a
      venire.

      Adjudication was withheld by Judge Roberts in the contempt proceedings

and Picon was ordered to pay a $250 fine, perform twenty-five hours of

community service, and write a letter of apology to every judge and judicial

assistant in the criminal division. The Fifth District Court of Appeal affirmed the

contempt order. Picon v. State, 149 So. 3d 35 (Fla. 5th DCA 2014) (table).

      In State v. Jennings, Picon represented a defendant in a criminal proceeding

before Judge David Dugan. On November 26, 2013, Respondent failed to attend a

scheduled hearing with her client, resulting in the issuance of a bench warrant and

the incarceration of her client for five days. The hearing had been scheduled at the

court’s direction and a notice to appear had been served on Picon. Picon was also

notified of the hearing date and time via e-mail from the prosecuting attorney.

Picon, however, failed to add the hearing date and time to her calendar or read the

e-mail from the prosecuting attorney.

      In State v. Richardson, Picon, as counsel of record for the defendant,

knowingly appeared for a hearing on December 19, 2013, before Judge Stephen

                                        -3-
Koons on her client’s motion to modify probation without her client and at a time

other than that provided by the court in the notice to appear. Judge Koons,

nevertheless, proceeded with the hearing. During the hearing, Picon presented

incorrect information regarding her client’s compliance with the terms and

conditions of her probation, resulting in the denial of the motion. Later that same

day, Picon’s client appeared before Judge Koons at the time stated in the notice to

appear. At that point, several unsuccessful attempts were made to ascertain

Picon’s whereabouts and determine whether she would be attending the hearing at

the scheduled time. Judge Koons ultimately permitted Picon’s client to proceed

pro se and, upon consideration of the documentation presented by Picon’s client,

granted the relief sought in her motion.

      The referee also found that Picon frequently failed to notify the court and

opposing counsel of conflicts in her schedule. Opposing counsel often attempted

to reach Picon by phone to ascertain her whereabouts and whether or not she

planned to attend a scheduled hearing. Such attempts, however, were often

unsuccessful and voicemail messages could not be left for Picon because her inbox

was routinely full. Also, judicial assistants and other court personnel would often

go to great lengths to determine Picon’s whereabouts and whether she would be

attending a hearing. Such lengths included court deputies utilizing the intercom




                                           -4-
system to contact each other in an attempt to ascertain Picon’s whereabouts and

whether she would be attending a hearing.

      On these facts, the referee recommended that Picon be found guilty of

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

client.”); 4-1.3 (“A lawyer shall act with reasonable diligence and promptness in

representing a client.”); 4-3.4(c) (“A lawyer must not knowingly disobey an

obligation under the rule of a tribunal. . .”); 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 five aggravating factors: Picon engaged in a pattern of

misconduct; committed multiple offenses; had substantial experience in the

practice of law; harmed vulnerable victims; and had a prior disciplinary record that

included a ten-day suspension for failing to timely appear for court proceedings, a

thirty-day suspension for failing to comply with this Court’s suspension order, and

a public reprimand for failing to timely respond to inquiries from the Bar. The

referee also found four mitigating factors: Picon lacked a dishonest or selfish

motive; had personal or emotional problems; other penalties and sanctions had

been imposed against her; and Picon expressed remorse for her conduct. As a

sanction, the referee recommended that Picon be suspended from the practice of




                                         -5-
law for ninety-one days. He also recommended that costs be awarded to the Bar in

the amount of $6,699.01.

      Picon filed a notice of intent to seek review of the report of referee,

challenging the proceedings before the referee and the sufficiency of the referee’s

report, the referee’s recommendations as to guilt, and the referee’s recommended

discipline. On June 30, 2016, we issued an order directing Picon to show cause

why the referee’s recommended discipline should not be disapproved and a more

severe sanction be imposed. The order also provided that, on the Court’s own

motion, Picon was suspended “until further order of this Court.”

                                   II. ANALYSIS

                        Sufficiency of the Referee’s Report

      We first address several challenges by Picon to the sufficiency of the

referee’s report. Picon argues that the report of referee in this case does not reflect

the referee’s independent judgment and that the referee merely adopted the Bar’s

proposed report of referee verbatim. As a general rule, a referee’s findings and

recommendations must demonstrate independent decision-making. A referee is

not precluded, however, from adopting one party’s proposed report of referee if the

record reflects that the referee exercised independent decision-making in doing so.

See Fla. Bar v. Barrett, 897 So. 2d 1269, 1273 (Fla. 2005); Fla. Bar v. Cramer, 678

So. 2d 1278, 1279 (Fla. 1996).


                                         -6-
      We are convinced by our review of the record in this case that the referee

exercised independent decision-making in making his findings and

recommendations. Both Picon and the Bar were given the opportunity to present

arguments at the end of the disciplinary hearing on what findings should be made

and what sanction, if any, was appropriate. After hearing argument from Picon

and the Bar, the referee informed the parties that he planned to seek an extension

of time to file his report in order to “give [the] case a hard review.” His

willingness to listen to the parties’ arguments and desire to give the case a “hard

review” indicate that the referee did not blindly adopt the Bar’s proposed report of

referee in this case. Such acts indicate that the referee distilled the evidence and

arguments presented to him, and exercised independent decision-making in

deciding whether to adopt the Bar’s proposed report of referee.

      Picon also argues that the referee failed to state on the record what specific

findings and recommendations he intended to make in the report of referee, and

that the findings and recommendations contained in the report of referee do not

comport with statements made by the referee during the disciplinary hearing.

There is no requirement in Bar discipline cases that a referee state on the record

what findings and recommendations he or she intends to make in the report of

referee. The only place a referee is required to set out his or her findings and

recommendations is within the report of referee that is submitted to this Court. See


                                         -7-
R. Regulating Fla. Bar 3-7.6(m). The report, and the findings and

recommendations contained therein, are not required to comport with any

statements made by the referee during a disciplinary hearing.

      Lastly, Picon contends that the referee did not provide her with an

opportunity to respond to argument from the Bar regarding her prior disciplinary

record or the Bar’s proposed report of referee, that the Bar’s arguments to the

referee regarding her prior disciplinary record violated Bar Rule 3-7.6(m)(1)(D),

and that the referee was not adequately familiar with the Bar discipline process.

Picon had ample opportunity to present each of these arguments to the referee, but

failed to do so. As a result, she has failed to preserve these issues for review in this

Court. See Fla. Bar v. Miller, 863 So. 2d 231, 236 (Fla. 2003) (claims not first

raised in the proceedings before the referee were waived by respondent).

        The Referee’s Findings of Fact and Recommendations of Guilt

      We next address the referee’s findings of fact and recommendation that

Picon be found guilty of violating Bar Rules 4-1.1, 4-1.3, 4-3.4(c), and 4-8.4(d).

This Court’s review of a referee’s findings of fact is limited. 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). Also, a referee’s factual findings must be


                                         -8-
sufficient under the applicable rules to support the recommendations as to guilt.

See Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005).

      In the present case, neither party contests the referee’s factual findings or the

referee’s recommendation that Picon be found guilty of violating Bar Rules 4-1.3

and 4-8.4(d). Having reviewed the record in this case, we conclude that the

referee’s factual findings are supported by competent, substantial evidence, and

that such findings support the referee’s recommendation that Picon be found guilty

of violating Bar Rules 4-1.3 and 4-8.4(d). We therefore approve the referee’s

findings of fact and recommendation of guilt as to Bar Rules 4-1.3 and 4-8.4(d).

      Picon does challenge the referee’s recommendation that she be found guilty

of violating Bar Rules 4-1.1 and 4-3.4(c). Picon first urges the Court to disapprove

the referee’s recommendation of guilt as to Bar Rule 4-1.1, which requires that a

lawyer provide competent representation to a client. Competent representation is

defined by the rule as having the legal knowledge, skill, thoroughness, and

preparation reasonably necessary for the representation. R. Regulating Fla. Bar 4-

1.1. The referee found that Picon appeared for court proceedings in the Smith,

Jennings, and Richardson cases either late, at a time other than provided by the

court, or not at all. Her failure to timely attend to her client’s cases disrupted

proceedings in the Smith case, resulted in the issuance of a bench warrant in the

Jennings case, and the presentation of incorrect information to the court in the


                                          -9-
Richardson case. Picon argues that her conduct in the Smith, Jennings, and

Richardson cases does not constitute a violation of Bar Rule 4-1.1 and that she

provided her clients with competent legal representation. This Court, however, has

not taken such a narrow view of competence, and has recognized that demonstrated

neglect of key client matters constitutes a violation of Bar Rule 4-1.1. See

Shoureas, 913 So. 2d at 557-58 (failure to respond to client inquiries and attend to

client matters violated Bar Rule 4-1.1); Fla. Bar v. Centurion, 801 So. 2d 858, 860

(Fla. 2000) (failure to attend to client matters and comply with a court order

violated Bar Rule 4-1.1). Accordingly, we approve the referee’s recommendation

that Picon be found guilty of violating Bar Rule 4-1.1.

      Picon also urges the Court to disapprove the referee’s recommendation of

guilt as to Bar Rule 4-3.4(c). The rule prohibits a lawyer from knowingly

disobeying an obligation under the rules of a tribunal, except for an open refusal

based on an assertion that no valid obligation exists. R. Regulating Fla. Bar 4-

3.4(c). The referee found that Picon disregarded a direct order from Judge Roberts

to file a pretrial motion before the commencement of trial and disobeyed a

directive from the court to appear at a proceeding in the Jennings case. Picon

claims that these acts were done unintentionally and not “knowingly,” as required

by Bar Rule 4-3.4(c). The Rules of Professional Conduct provide that




                                        - 10 -
      “ ‘[k]nowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact

in question.” See Preamble: A Lawyer’s Responsibilities, Rules of Professional

Conduct; see also Fla. Bar v. Committe, 136 So. 3d 1111, 1115 (Fla. 2014). Picon

clearly had knowledge of Judge Roberts’ order and admitted in the proceedings

before the referee that she knew she was not in compliance with it when she filed

the motion at three o’clock in the morning the day trial was to commence. Picon

also clearly had knowledge of when the proceedings in the Jennings case were

scheduled to occur, having received court documents and e-mails containing the

date and time of the hearing. Accordingly, we approve the referee’s

recommendation that Picon be found guilty of violating Bar Rule 4-3.4(c).

                     The Referee’s Recommended Discipline

      Lastly, we address the referee’s recommended discipline, a ninety-one day

suspension. 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. At the same time, the Court will generally 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).


                                        - 11 -
      We agree with the referee that Picon’s misconduct clearly warrants a

suspension. See Fla. Stds. Imposing Law. Sancs. 4.42 (suspension is appropriate

when “a lawyer knowingly fails to perform services for a client and causes injury

or potential injury to a client” or “engages in a pattern of neglect and causes injury

or potential injury to a client”); Fla. Stds. Imposing Law. Sancs. 6.22 (suspension

is appropriate when “a lawyer knowingly violates a court order or rule, and causes

injury or potential injury to a client or a party, or causes interference or potential

interference with a legal proceeding”). However, considering the multiple acts of

client neglect committed by Picon, the harm caused to her clients, and her

extensive prior disciplinary record, we believe that a ninety-one day suspension is

not appropriate and that a more severe sanction is warranted. We find that the

appropriate sanction for Picon’s misconduct is a one-year suspension from the

practice of law.

      Picon’s acts of client neglect in this case are part of a pattern of client

neglect and mismanagement that Picon has engaged in for several years. To date,

Picon has been disciplined by this Court for engaging in comparable misconduct in

three other cases. In 2008, Picon was suspended for ten days and placed on

probation for two years for her failure to timely appear for court proceedings. Fla.

Bar v. Picon, 975 So. 2d 430 (Fla. 2008) (table). Picon was again suspended in

2011 for thirty days for her failure to comply with this Court’s 2008 suspension


                                         - 12 -
order. Fla. Bar v. Picon, 61 So. 3d 1114 (Fla. 2011) (table). In 2013, Picon was

publicly reprimanded for her failure to timely respond to inquiries from the Bar.

Fla. Bar v. Picon, 129 So. 3d 1070 (Fla. 2013) (table). This Court has long held

that “cumulative misconduct of a similar nature warrants an even more severe

discipline than might dissimilar conduct.” Fla. Bar v. Walkden, 950 So. 2d 407,

410 (Fla. 2007).

      Further, we have previously imposed long-term rehabilitative suspensions in

cases where an attorney has committed multiple acts of client neglect. Notably, in

Fla. Bar v. Cimbler, 840 So. 2d 955 (Fla. 2002), we suspended an attorney with a

prior disciplinary record for one-year for his negligent representation of three

separate clients. The attorney failed to timely record a deed and pay fees

associated with a real estate transaction on behalf of one client, failed to appear at

multiple hearings on behalf of another client, and failed to inform a third client that

he was required to appear at a deposition. Id. at 956-58. The Court disapproved

the referee’s recommended ninety-one day suspension, finding that the seriousness

of the acts of neglect, the cumulative nature of the misconduct, and the attorney’s

prior discipline history warranted a lengthier suspension. Id. at 959. In doing so,

we stated “[f]ailing to represent one’s client zealously, failing to communicate

effectively with one’s client, and failing to provide competent representation are all

serious deficiencies.” Id. at 960 (quoting Fla. Bar v. Roberts, 689 So. 2d 1049,


                                         - 13 -
1051 (Fla. 1997); see also Shoureas, 892 So. 2d at 1009 (citing multiple cases

where the Court imposed a lengthy suspension for client neglect).

      Moreover, Picon’s misconduct is particularly egregious in that it resulted in

a bench warrant being issued in the Jennings case for her client and her client’s

incarceration for several days. In Fla. Bar v. Gass, 153 So. 3d 886 (Fla. 2014), an

attorney, among other things, advised his clients to not comply with a subpoena to

attend a deposition, failed to attend a scheduled deposition and court hearing on

behalf of his clients, and failed to inform his clients that an order directing them to

show cause why they should not be held in contempt had been issued. Id. at 888-

90. The attorney’s misconduct ultimately resulted in a bench warrant being issued

for his clients and the incarceration of his clients for three days. Id. The Court

disapproved the referee’s recommended sixty-day suspension and, noting the

particularly egregious nature of the attorney’s misconduct, imposed a one-year

suspension. Id. at 892-93.

      We have also considered the referee’s findings in aggravation and

mitigation, which we approve without further discussion. While we commend

Picon’s showing of remorse, we conclude that the evidence of mitigation is

insufficient to overcome Picon’s serious misconduct.




                                         - 14 -
                                 III. CONCLUSION

      Accordingly, Jean M. Picon is hereby suspended from the practice of law for

one year. The suspension shall be effective, nunc pro tunc, July 30, 2016, the date

on which Picon’s suspension, imposed in this Court’s order of June 30, 2016,

became effective. Because Picon is currently suspended, it is not necessary to

provide her with thirty days to close out her practice to protect the interests of

existing clients. Picon shall fully comply with Rule Regulating the Florida Bar 3-

5.1(h). Further, Picon shall accept no new business from the date this opinion is

filed until she is reinstated by order of this Court.

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

Tallahassee, Florida 32399-2300, for recovery of costs from Jean M. Picon in the

amount of $6,699.01, for which sum let execution issue.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.

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

Original Proceeding – The Florida Bar

John F. Harkness, Executive Director, The Florida Bar, Tallahassee, Florida; Adria
E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida; and Patricia Ann
Toro Savitz, Bar Counsel, The Florida Bar, Orlando, Florida,

      for Complainant


                                          - 15 -
Jean M. Picon, pro se, Melbourne, Florida,

      for Respondent




                                      - 16 -
