TN THE SUPREME COURT OF FLORIDA

(Before a Referee)
THE FLORIDA BAR,
Complainant,
v.
MICHAEL GORDON FINK,
Respondent.
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Case No.: SC11-1939
TFB File No. 2011-10,037 (20C)
REPORT OF THE REFEREE
I. SUMMARY OF PROCEEDINGS: The undersigned was duly appointed as
Referee in these proceedings. On October 6, 2011, The Florida Bar filed its
Complaint against Respondent. The parties have agreed to a Conditional Guilty
Plea for Consent Judgment. Any pleadings, notices, motions, orders, transcripts,
and exhibits are forwarded to The Supreme Court of Florida with this report and
constitute the record in this case.
The following attorneys appeared as counsel for the parties:
For The Florida Bar: Lisa Buzzetti Hurley
For The Respondent: Mark Christopher Menser
Respondent is, and at all times mentioned during this investigation was, a
member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the
Supreme Court of Florida.
II. FIN DIN GS OF FACT: I adopt the stipulated facts as set forth in the
Conditional Plea for Consent Judgment as my findings of fact, as follows:
On or about June 25, 2010, Respondent was arrested and
charged with misdemeanor battery in Case. No. 10-MM-023427, in
and for Lee County, Florida. Respondent was involved in a physical
altercation with his now ex-wife. Respondent and his wife were
separating, and Respondent had moved out of the marital residence.
Respondent on the night of his arrest had gone to the marital
residence, after consuming alcohol earlier that evening, in an attempt
to try to reconcile their relationship. Respondent had a weapon on his
person that discharged during the altercation without injury to anyone.
Respondent suffered injuries as a result of the altercation with his then
wife and her paramour. Respondent entered into a 2 year clinical
contract voluntarily with FLA on January 26, 2011 to address the
depression he was suffering resulting from the separation from his
wife. On or about February 14, 2011, Respondent accepted a plea on
simple battery charge, agreeing to one (1) year of probation. On or
about February 14, 2011, the court entered an order withholding
adjudication and placing Respondent on probation for one (1) year,
including a provision that Respondent meet with one of the circuit
court judges weekly.
HI. RECOMMENDATIONS AS TO GUILT: I recommend that Respondent's
Conditional Guilty Plea for Consent Judgment be accepted and Respondent be
found guilty of violating the following Rules Regulating The Florida Bar: 3-4.3
(Misconduct and Minor Misconduct); and 4-8.4(b) (A lawyer shall not commit a
criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or
fitness as a lawyer in other respects).
IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS: I considered the
following Standards prior to recommending discipline:
2.7 PROBAT ION
Probation is a sanction that allows a lawyer to practice law under specified
conditions. Probation can be imposed alone or in conjunction with any other
disciplinary measure; probation can be imposed as a condition of readmission or
reinstatement.
5.1 FAILURE TO MAINT AIN PERSONAL INTEGRITY
5.14 Admonishment is appropriate when a lawyer engages in any other conduct
that reflects adversely on the lawyer's fitness to practice law.
V. CASE LAW: I considered the following case law prior to recommending
discipline:
Florida Ba r v. Ba rtholf, 775 So.2d 957 (Fla. 2000): (Public Reprimand and one
year probation) Bartholf committed a battery at a golf course. Bartholf pled guilty
to the misdemeanor offense of battery and was placed on probation. The following
were aggravating factors: a prior admonishment in 1993; and substantial
experience in the practice of law. The following were mitigating factors: absence
of a dishonest or selfish motive; timely good-faith effort to make restitution or to
rectify the consequences of misconduct; full and free disclosure to disciplinary
board or cooperative attitude toward proceedings; interim rehabilitation; and
remorse. Respondent petitioned for review as to the referee's recommendation
requiring an FLA contract which the Court refused to require due to inconclusive
evidence of the necessity for said contract.
The instant case is distinguishable from Bartholf in that Respondent has no prior
disciplinary history.
VI. RECOMMEN DAT ION AS TO DISCIPLIN ARY MEASURES TO BE
APPLIED: : I recommend that the discipline agreed to in the Conditional Guilty
Plea for Consent Judgment and set forth as follows be accepted as follows:
A. Admonishment to be administered by issuance of the Supreme Court
of Florida Order approving this Report of Referee accepting the Consent
Judgment.
B. Three (3) year period of probation during which time Respondent
shall satisfy the following conditions:
1) Respondent shall comply with the terms of his probation in his
criminal case, Lee County Case No. 10-MM-023427.
2) Respondent shall enter into a three-year rehabilitation contract with
Florida Lawyers Assistance, Inc. (FLA) consistent with the
recommendations of FLA within thirty (30) days of the Supreme
Court's acceptance of this consent judgment.
3) Respondent shall consent to open communication between all
therapists and expressly waives any and all applicable patient/therapist
privileges to the extent necessary to provide the Bar with evidence of
his compliance or noncompliance with the terms of his FLA contract
and the terms of his probation.
4) Respondent shall provide FLA with the name, address, and telephone
number of each physician or other professional treating him, and
herein authorize FLA to obtain any information desired from said
professionals.
5) Respondent shall obtain treatment from his primary therapist and shall
provide free and unlimited release of all information concerning his
health and participation in treatment to FLA.
6) Respondent shall request his primary therapist, as well as any other
treating professional, notify FLA immediately of: (a) failure to
comply with or progress in treatment; (b) any change of medication;
(c) discontinuation of therapy; (d) change of treating professional; (e)
failure to appear for appointments, continue prescribed medications,
or cooperate in the therapeutic process.
7) Respondent shall be responsible for making at least one personal
contact per month with his monitor in addition to other therapy
sessions recommended by the monitor or other treating
professional(s).
8) Respondent shall provide his monitor with whatever substantiating
documentation the monitor may require to assure compliance with his
FLA contract.
9) Respondent shall provide FLA with notification of any changes in his
physical or mental health, address, phone number, or employment.
10) Respondent shall actively participate in a facilitated support group for
professionals if such a group is available within his geographic area.
11) If therapeutically indicated, Respondent shall submit and pay for
random drug/alcohol screens pursuant to FLA drug testing protocol.
12) Respondent shall participate in continuing private and/or group
therapy as required by his monitor, FLA, or other treating physicians
or counselors.
13) Respondent shall immediately notify FLA and his monitor in the
event he: (a) uses any mind or mood altering substances without a
prescription; (b) is arrested for or charged with any criminal violation;
or (c) has a grievance or complaint filed against him by The Florida
Bar.
14) Respondent shall reimburse The Florida Bar $250.00 for FLA's
program registration, unless previously provided to FLA, and, in
addition, shall pay to The Florida Bar $100.00 per month for
monitoring costs, in accordance with a payment schedule to be agreed
upon by the Lawyer Regulation Department of The Florida Bar.
15) Respondent shall perform in accordance with each and every term
contained in any court order or agreement with the Lawyer Regulation
Department of The Florida Bar.
16) Respondent shall attend the annual FLA workshop unless
circumstances (which shall be documented to FLA in writing) make
such attendance unduly burdensome.
17) Respondent shall consent to the modification of his FLA contract
terms as required by his monitor and dictated by a change in
circumstances.
Any of the following events shall constitute a violation of probation:
1) A finding by a grievance committee of probable cause against
Respondent as to conduct of Respondent committed during the period
of probation;
2) Respondent's failure to satisfy of any terms and conditions of any
contract with FLA including failing to timely pay any costs associated
with the FLA contract; and/or
3) Respondent's failure to satisfy any terms and conditions of the
Conditional Guilty Plea for Consent Judgment.
VII. PERSON AL HISTORY AND PAST DISCIPLINARY RECORD: Prior to
recommending discipline pursuant to Rule 3-7.6(m)(l)(D), i considered the
following personal history of Respondent, to wit:
Age: 48
Date admitted to the Bar: October 19, 1989
Prior Discipline: none.
Respondent is board certified by The Florida Bar in civil trial practice.
Mitigating Factors:
9.32(a) absence of a prior disciplinary record;
9.32(b) absence of a dishonest or selfish motive;
9.32(c) personal or emotional problems;
9.32(e) full and free disclosure to disciplinary board or cooperative attitude
toward proceedings; and
9.32(j) interim rehabilitation.
VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD
BE TAXED: I find the costs set forth in The Florida Bar's Motion to Assess Costs
filed in this cause were reasonably incurred and were not unnecessary, excessive or
improperly authenticated and Respondent stipulated to the payment of such costs
incurred by The Florida Bar.
It is recommended that the costs itemized in The Florida Bar's Motion to
Assess Costs in the total sum of $1,315.00 be charged to Respondent and that
interest at the statutory rate shall accrue and that should such cost judgment not be
satisfied within thirty days of said judgment becoming final, Respondent shall be
deemed delinquent and ineligible to practice law, pursuant to R. Regulating Fla.
Bar 1-3.6, unless otherwise deferred by the Board of Governors of The Florida
Bar.
Dated this 1 day of I na rch 2012.
JUDY GOLDM A N
Judith Miriam Goldman
Referee
Copies furnished to:
Lisa Buzzetti Hurley, Bar Counsel, The Florida Bar, 4200 George J. Bean
Parkway, Suite 2580, Tampa, Florida 33607;
Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson
Street, Tallahassee, Florida 32399-2300; and
Mark Christopher Menser, Counsel for Respondent, Mike Fink Trial Lawyers,
P.A., 1614 Colonial Blvd., Fort Myers, FL 33907-1130.