Opinion
No. SC06-432.
December 10, 2007.
Lower Tribunal No(s). 2006-71,070(11C-OSC).
On September 1, 2005, this Court approved an uncontested petition for the disciplinary resignation of Henry I. Smyler. As a condition of his resignation, Smyler agreed to submit trust account records for the period of May 31, 2000, to April 15, 2005, to a certified public accountant for an audit in accordance with rule 5-1.2, Rules Regulating Trust Accounts, and to submit the accountant's report to the Bar within ninety days of the date he signed the petition for disciplinary resignation. On March 3, 2006, The Florida Bar filed a petition for an order to show cause why Smyler should not be held in contempt for failing to submit the required audit report. On March 28, 2006, this Court issued such an order to show cause. On July 28, 2006, after considering Smyler's response, this Court appointed a referee to make a recommendation regarding the disposition of the contempt action. On October 30, 2006, the referee filed a report, finding that Smyler violated the Court's September 1, 2005, order and recommending that Smyler be permanently disbarred. Smyler petitioned this Court for review of the referee's report.
We do not approve the referee's finding of contempt because the record does not support a finding that Smyler intentionally failed to comply with this Court's order approving his disciplinary resignation. We write to reiterate that Smyler's resignation during a disciplinary proceeding is equivalent to disbarment. This Court's order approving Smyler's resignation specifically stated that "Disciplinary resignation is tantamount to disbarment." While our order and rule 3-7.10, Rules Regulating the Florida Bar, provide that Smyler may seek readmission to the Bar after five years, a disbarred attorney such as Smyler faces a heavy burden when applying for readmission. If Smyler seeks readmission to the Bar at the expiration of his five-year period of ineligibility, his failure to submit the required audit report increases his burden of proving rehabilitation and fitness to practice. Our instant decision to decline to hold Smyler in contempt for failing to produce the required audit report is without prejudice to the Bar to raise any issues pertaining to Smyler's failure to comply with the conditions of his disciplinary resignation or any issues pertaining to any outstanding complaints regarding Smyler's trust accounts in any future proceedings in which Smyler seeks readmission to the Bar.
Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Henry I. Smyler in the amount of $2,897.34, for which sum let execution issue.
Not final until time expires to file motion for rehearing, and if filed, determined.
WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur. LEWIS, C.J., recused.