IN THE SUPREME COURT OF FLORIDA (Before a Referee)

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1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, vs. CARLOS LIDSKY, Supreme Court Case No. SC The Florida Bar File No ,764(11E) Respondent. / REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: Pursuant to the undersigned being duly appointed as Referee for the Supreme Court of Florida to conduct disciplinary proceedings as provided for by Rule 3-7.6(b) of the Rules Regulating The Florida Bar, a Final Hearing was held on July 16, Prior to the Final Hearing, the Court heard argument on the parties respective Motions for Summary Judgment and issued an Order dated May 21, 2009, finding that Respondent violated Rules 4-4.4(a) and 4-8.4(a) of the Rules of Professional Conduct. All of the pleadings, notices, motions, orders, and exhibits are forwarded with this report and the foregoing constitute the record in this case.

2 The following attorneys appeared as counsel for the parties: On Behalf of The Florida Bar: Kasey L. Prato The Florida Bar 444 Brickell Avenue Suite M-100 Miami, Florida On Behalf of the Respondent: Steven D. Pinkert 9100 So. Dadeland Boulevard Suite 1702 Miami, Florida II. FINDINGS OF FACT: A. Jurisdictional Statement: Respondent is and was at all times material herein a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. B. Narrative Summary of Case: Over a period of many years, Mark A. Cereceda, D.C., P.A. ( Cereceda P.A. ) has been engaged in personal injury protection (PIP) benefits litigation with United Automobile Insurance Company ( United ). In the various lawsuits, the Cereceda P.A. has claimed entitlement to fees for chiropractic services rendered to United insureds. The Respondent represents United. In February 2008, Respondent s client, United, filed a RICO action against Dr. Mark A. Cereceda and the Cereceda P.A. alleging fraud. 2

3 Dr. Cereceda, a licensed chiropractic physician, formed the Cereceda P.A. on April 30, The Cereceda P.A. was administratively dissolved on September 19, 2003, for failure to file an annual report. Upon discovery of the administrative dissolution of the Cereceda P.A., Respondent, at his client s behest, formed Mark A. Cereceda, D.C., P.A. (hereinafter, the Lidsky P.A. ) on December 12, Respondent was the only officer listed for the Lidsky P.A. on the Florida Secretary of State website. The Articles of Incorporation for the Lidsky P.A. stated that the nature of the business was to PROVIDE FRAUD DETECTION SERVICES TO THE INSURANCE INDUSTRY (emphasis in original). Shortly after the formation of the Lidsky P.A., Dr. Cereceda telephoned Respondent regarding Respondent s subscription to the corporate name Mark A. Cereceda, D.C., P.A. and requested that Respondent dissolve it. Respondent voluntarily dissolved Mark A. Cereceda, D.C., P.A. (the Lidsky P.A.) on December 31, At no time during the formation of the Lidsky P.A. did Respondent conduct chiropractic, fraud detection, or other business through the Lidsky P.A. In his pleadings, summary judgment affidavits, and letters sent to the Florida Bar through Respondent s counsel, Respondent maintained that he formed the Lidsky P.A. as a litigation strategy at the request of his client. By forming the Lidsky P.A. during the administrative dissolution of the Cereceda P.A., the Respondent and United 3

4 intended to prevent Dr. Cereceda from resurrecting the dissolved Cereceda P.A. and, thereby, challenge Dr. Cereceda s standing to bring PIP claims against United in the name of the dissolved Cereceda P.A. Although not illegal, Respondent s formation of the Lidsky P.A. was done with the intent to inhibit Dr. Cereceda s access to the courts. The Lidsky P.A. s stated purpose of providing fraud detection services to the insurance industry is particularly significant as United had previously accused Dr. Cereceda and the Cereceda P.A. of committing fraud. Therefore, I can find no substantial or legitimate reason for the Respondent forming the Lidsky P.A. other than to embarrass, delay, or burden the rights of Dr. Cereceda. III. RECOMMENDATION AS TO GUILT: Based upon the foregoing, I recommend that Respondent be found guilty of violating Rules 4-4.4(a) (use of means that have no substantial purpose other than to embarrass, delay, or burden a third person) and 4-8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct. IV. AGGRAVATING AND MITIGATING FACTORS: In determining the appropriate discipline, I find the following aggravating and mitigating factors apply as set forth in Florida s Standards for Imposing Lawyer Sanctions: 4

5 A. Aggravation 9.22 (i) substantial experience in the practice of law B. Mitigation 9.32 (b) absence of a dishonest or selfish motive 9.32 (d) timely good faith effort to make restitution or to rectify consequences of misconduct 9.32 (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings 9.32 (g) character or reputation 9.32 (l) remorse V. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that Respondent be found guilty of minor misconduct justifying disciplinary measures, and that he be disciplined by: A. Admonishment by service of the Report of Minor Misconduct; and B. Payment of The Florida Bar s costs in these proceedings. VI. PERSONAL HISTORY OF RESPONDENT AND PAST DISCIPLINARY RECORD: Age: 59 Date Admitted to the Bar: May 22, 1975 Prior disciplinary record: Admonishment

6 VII. STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED: proceedings: I find the following costs were reasonably incurred by The Florida Bar in these Administrative fee Rule 3-7.6(o)(1)(I). $ 1, April 23, Transcript of proceedings April 23, April 27, May 18, Transcript of proceedings May 18, July 16, Transcript of proceedings July 16, Total: $ 2, It is recommended that such costs be charged to Respondent and that interest at the statutory rate shall accrue and be deemed delinquent 30 days after the judgment in 6

7 this case becomes final unless paid in full or otherwise deferred by the Board of Governors of The Florida Bar. Dated this day of August, DARRIN P. GAYLES, Referee Miami Beach Courthouse 1130 Washington Avenue Room 202 Miami, Florida CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32301, and that copies were mailed by regular U.S. Mail to KENNETH LAWRENCE MARVIN, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida ; Kasey L. Prato, Bar Counsel, The Florida Bar, 444 Brickell Avenue, Suite M-100, Miami, Florida 33131; and Steven D. Pinkert, Attorney for Respondent, 9100 S. Dadeland Blvd., Penthouse One, Suite 1702, Miami, Florida 33156, on this day of, DARRIN P. GAYLES, Referee 7