          Supreme Court of Florida
                                   ____________

                                   No. SC11-1780
                                   ____________

                               THE FLORIDA BAR,
                                  Complainant,

                                          vs.

                           JOSE CARLOS MARRERO,
                                  Respondent.

                                    [June 2, 2016]

PER CURIAM.

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

Carlos Marrero, be found guilty of professional misconduct and suspended from

the practice of law for ninety days, followed by three years’ probation. We have

jurisdiction. See art. V, § 15, Fla. Const.

                                  BACKGROUND

      In September 2011, The Florida Bar filed a complaint against Respondent,

Jose Carlos Marrero, alleging that he had violated rules 4-8.4(c) (engaging in

conduct involving dishonesty, fraud, deceit or misrepresentation) and 5-1.1(b)

(trust accounts) of the Rules Regulating the Florida Bar. A referee was appointed
and hearings were held over four days in April and May 2012. The referee

submitted a report recommending that Respondent not be found guilty of any rule

violations. On review, the Court disapproved this recommendation. In its opinion,

the Court recited the following facts:

             The Florida Bar alleged that Respondent violated the Rules
      Regulating the Florida Bar by his conduct when serving as an escrow
      agent for a loan provided by Ms. Gonzalez, and when processing a
      related loan from Countrywide Bank. As the referee found in its
      report, Respondent and Mr. Pedrosa were officers of Weston
      Professional Title Group, Inc. Respondent was the President and
      registered agent of Weston. Pedrosa was a mortgage broker.
      Occasionally, Pedrosa made business arrangements with Ms.
      Gonzalez. She would make cash loans, through Pedrosa, to his
      clients.
             The evidence demonstrates that on December 13, 2005,
      Respondent accepted a $200,000 check from Gonzalez that was to be
      used for a loan. She provided the check through an arrangement she
      made with Pedrosa. Although Respondent did not negotiate the
      agreement with Gonzalez, he knew the funds were for a loan to
      borrowers Gutierrez and Carrero. Gonzalez testified that Pedrosa
      informed her the funds were to be used for a second mortgage.
             Bank statements show that Respondent deposited the $200,000
      cashier’s check into his escrow account on December 15, 2005, and
      he disbursed the entirety of the loan funds by wire transfer to the
      borrowers the next day, on December 16, 2005. He did not require
      the borrowers to sign any agreements at the time. The funds were
      provided to Gutierrez and Carrero before the note and mortgage were
      prepared or signed. In fact, the mortgage and note were not created
      until three weeks after the funds were disbursed. Respondent did not
      draft the “second mortgage” and promissory note until January 10,
      2006, which was 25 days after he gave the borrowers the entire
      $200,000. This conduct did not protect the interests of lender
      Gonzalez. As Respondent was a fiduciary responsible for the funds
      and to all involved parties, these deliberate acts are not negligence.
      He intentionally disbursed the funds the day after receiving them from


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Gonzalez, without having the borrowers sign any documents at that
time. He performed these actions deliberately and knowingly.
       Furthermore, in the “second mortgage” Respondent listed the
property at issue as collateral for the loan. However, when the
mortgage and note were executed on January 11, 2006, and witnessed
by Respondent, the borrowers had no ownership interest in the
property that was listed as collateral. The borrowers did not purchase
the property until six days later on January 17, 2006.
       Although Gonzalez received the loan closing documents on
January 11, 2006, Respondent did not record the Gonzalez mortgage
until six months later. The deed of mortgage, which Respondent
prepared, was executed by Gutierrez and Carrero on January 11, 2006,
but was not recorded until June 22, 2006. Thus, Gonzalez did not
have a recorded interest in the property until six months after
Respondent gave the borrowers the $200,000. At no time during
these events did Respondent inform Gonzalez that the funds were
being used by the borrowers to purchase the house. Gonzalez had
been told that the funds were to be used to make repairs on a house
that the borrowers already owned; her loan was to serve as a second
mortgage.
       Borrowers Gutierrez and Carrero did not own the property until
January 17, 2006, which is the date a loan was settled between lender
Countrywide Bank and the borrowers. It is significant that the
mortgage loan application executed by Carrero to obtain the
Countrywide Bank loan failed to disclose the $200,000 loan from
Gonzalez as a liability. In addition, because Respondent delayed for
many months before recording the $200,000 Gonzalez loan, his
actions prevented the loan from being found by any title search
performed for the Countrywide Bank closing on January 17, 2006.
Further, the compliance form failed to disclose the $200,000 loan
from Gonzalez. The title insurance loan policy, which Respondent
signed, also failed to list the Gonzalez loan. Similarly, the Owner’s
Policy of Title Insurance did not reflect the $200,000 loan.
Respondent’s title company closed the loan and Respondent signed
the policy.
       Eventually, after purchasing the property, the borrowers
stopped making payments on the Gonzalez loan. Gonzalez’s efforts to
recover her funds were unsuccessful.




                                -3-
Fla. Bar v. Marrero, 157 So. 3d 1020, 1022-23 (Fla. 2015). Based on these facts,

the Court found that Respondent violated rule 4-8.4(c) by: (1) drafting, executing,

and witnessing a mortgage loan document containing the misrepresentation that the

borrowers had the legal authority to encumber the subject property; (2) deliberately

and knowingly failing to inform Gonzalez that the funds she provided were not

being used in accordance with her agreement and failing to inform her of the delay

in recording the loan and recording her interest in the property; and (3) failing to

disclose the Gonzalez loan in the course of his handling of the Countrywide Bank

loan. The Court also found that Respondent violated rule 5-1.1 by failing to

dispense the funds provided by Gonzalez and held by him as escrow agent in

accordance with terms of the agreement between Gonzalez and the borrowers. Id.

at 1023-26. The Court referred the case back to the referee to hold a hearing and

recommend a disciplinary sanction. Id. at 1026.

      At the hearing before the referee, Respondent presented the testimony of

several character witnesses, who testified regarding Respondent’s honesty and

integrity. Respondent also testified on his own behalf. Based on the testimony and

other evidence at the hearing, the referee found the following mitigating factors:

(1) absence of prior disciplinary record; (2) full and free disclosure and cooperative

attitude; (3) inexperience in the practice of law; (4) good character and reputation;

and (5) interim rehabilitation. In aggravation, the referee found the following: (1)


                                         -4-
dishonest or selfish motive; and (2) indifference to making restitution. The referee

recommends that Respondent be suspended for ninety days, followed by a three-

year probationary period, during which Respondent must complete several courses

pertaining to real estate contracts and closings, settlement statements, escrow, and

ethics. The referee also recommends that Respondent be required to pay the costs

of supervision during the probationary period and pay the Bar’s costs in this case

in the amount of $11,573.24. The Bar seeks review of the referee’s disciplinary

recommendation and contends that Respondent should be disbarred.

                                 ANALYSIS

      In reviewing a referee’s recommended discipline, this Court’s scope of

review is broader than that afforded to the referee’s findings of fact because,

ultimately, it is 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).

      Here, in making her disciplinary recommendation, the referee considered

three standards under which suspension is the appropriate sanction: standards 4.12,

4.52, and 7.2. Those standards address improperly dealing with client property,


                                         -5-
lack of competence, and violating duties owed as a professional. Fla. Stds.

Imposing Law. Sancs. 4.12, 4.52, 7.2. The referee also considered standard 5.11(f)

which provides that disbarment is appropriate when a lawyer engages in intentional

conduct involving dishonesty, deceit, or misrepresentation that seriously adversely

reflects on the lawyer’s fitness to practice law. Fla. Stds. Imposing Law. Sancs.

5.11(f). We conclude that the referee correctly considered these standards given

the findings and conclusions made in the prior opinion in this case. Further,

although standard 5.11(f) provides for the presumptive sanction of disbarment,

considering the five mitigating factors found by the referee and not challenged by

the Bar in this case, we conclude that suspension is supported under these

standards.

      Based on her consideration of the rule violations found by the Court in its

opinion, the referee found Florida Bar v. Watson, 76 So. 3d 915 (Fla. 2011), and

Florida Bar v. Erlenbach, 138 So. 3d 369 (Fla. 2014), to be relevant and

instructive. In Watson, an attorney was suspended for three years after being

found guilty of three violations of rule 4-8.4(c) and four violations of rule 5-1.1(b).

The attorney facilitated his client’s fraudulent transactions and mishandled the

funds of multiple investors in his client’s development project. The investors had

entrusted various sums of money to be held in the attorney’s trust account for the

purpose of serving as collateral for a standby letter of credit. However, at his


                                         -6-
client’s direction, the attorney improperly disbursed the money. The attorney also

wrote a letter to other investors stating that the funds would be held in his trust

account which was a misrepresentation upon which the investors relied. Id. at 918-

21.1

       In Erlenbach, the attorney repeatedly failed to file her personal income tax

returns, repeatedly failed to pay income taxes owed, and withheld federal income

tax, social security tax, and Medicare tax from her employees but failed to pay

those sums to the Department of the Treasury as required. Erlenbach, 138 So. 3d

at 370-71. In doing so, Erlenbach violated rules 3-4.3 (commission of an act that is

unlawful or contrary to honesty and justice) and 4-8.4(c). The Court rejected the

referee’s recommendation of an eighty-nine-day suspension and instead imposed a

one-year suspension followed by two years’ probation. There were several

mitigating circumstances, including personal and emotional problems and good

character, but the attorney had significant experience in the practice of law, three

prior instances of discipline, and there was a pattern of misconduct. Id. at 371-72.

       Here, the misconduct committed by Respondent is quite similar to that

which occurred in Watson, and although Erlenbach is factually different, both

Erlenbach and Respondent committed several violations of rule 4-8.4(c), violations



       1. The attorney in Watson was eventually disbarred for additional violations
in a later case. Florida Bar v. Watson, 88 So. 3d 151 (Fla. 2012) (table).


                                         -7-
that the Court does not view lightly. See Watson, 76 So. 3d at 926 (stating that

violations of rule 4-8.4(c) are not viewed as minor and attorney dishonesty cannot

be tolerated). Given the serious nature of Respondent’s violations, we disapprove

the referee’s recommendation and conclude that Respondent, like Watson and

Erlenbach, should receive a suspension requiring proof of rehabilitation prior to

reinstatement.

      Accordingly, Jose Carlos Marrero is hereby suspended from the practice of

law for three years. The suspension will be effective thirty days from the filing of

this opinion so that Respondent can close out his practice and protect the interests

of existing clients. If Respondent 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. Respondent shall

fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Respondent

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

reinstated.

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

Tallahassee, Florida 32399-2300, for recovery of costs from Jose Carlos Marrero

in the amount of $11,573.24, for which sum let execution issue.

      It is so ordered.

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

                                         -8-
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

Richard Benjamin Marx of the Law Offices of Richard B. Marx & Associates,
Miami, Florida,

      for Respondent




                                        -9-
