Opinion
No. SC13–1396.
2014-09-5
In re Petition for Disciplinary Revocation of Christian Noel FOLLAND.
R. Regulating Fla. Bar 3–7.12(a). Disciplinary revocation may be granted if the petitioner shows that “the public interest will not be adversely affected by the granting of the petition and that such will neither adversely affect the integrity of the courts nor hinder the administration of justice nor the confidence of the public in the legal profession.” R. Regulating Fla. Bar 3–7.12(b). No application for readmission may be sought until the later of five years after the date of the order granting the petition for disciplinary revocation, or such other time stated in the order. R. Regulating Fla. Bar 3–5.1(g).
Before the Court is Petitioner Christian Noel Folland's petition for disciplinary revocation, filed with this Court on August 5, 2013. This petition, which is supported by The Florida Bar, is brought in lieu of the Bar continuing its investigation in the pending disciplinary proceeding with The Florida Bar File No.2011–70,532(11P).
A petition for disciplinary revocation may be filed if The Florida Bar is investigating the conduct of a lawyer or has recommended probable cause. R. Regulating Fla. Bar 3–7.12. Disciplinary revocation, which is tantamount to disbarment, terminates an attorney's status as a member of The Florida Bar and dismisses all pending disciplinary cases. R. Regulating Fla. Bar 3–5.1(g), 3–7.12(d); Florida Bar v. Hale, 762 So.2d 515 (Fla.2000). A petition for revocation must include:
a statement of all past and pending disciplinary actions and criminal proceedings against the petitioner. The statement shall describe the charges made or those under investigation for professional misconduct, results of past proceedings, and the status of pending investigations and proceedings. The petition shall state whether it is with or without leave to apply for readmission to the bar.
R. Regulating Fla. Bar 3–7.12(a). Disciplinary revocation may be granted if the petitioner shows that “the public interest will not be adversely affected by the granting of the petition and that such will neither adversely affect the integrity of the courts nor hinder the administration of justice nor the confidence of the public in the legal profession.” R. Regulating Fla. Bar 3–7.12(b). No application for readmission may be sought until the later of five years after the date of the order granting the petition for disciplinary revocation, or such other time stated in the order. R. Regulating Fla. Bar 3–5.1(g).
In the instant petition for disciplinary revocation, Petitioner maintains that he has never been the subject of any criminal proceedings and has no history of discipline from The Florida Bar. However, Petitioner acknowledges being the respondent in a pending disciplinary proceeding involving Petitioner's noncompliance with a subpoena and his involvement in multiple real estate transactions in which the HUD–1 settlement statements did not reflect the actual transactions made. Petitioner agrees to reimburse the Clients' Security Fund of The Florida Bar for any and all payments imposed as a result of his defalcations, if any, and The Florida Bar for the costs it has incurred, and to permit the Bar to audit any and all trust accounts and any other accounts over which he has signatory capacity as either an attorney-at-law, fiduciary, or trustee, if required to do so by the Bar. Petitioner also agrees to provide The Florida Bar with a sworn financial affidavit within thirty days of the petition, to notify the Bar of any change of address during the two years following the date of this order, and to keep the Bar advised as to the physical address of his home and/or business in the event Petitioner should utilize a post office box or other type of mail drop service.
In response to an order to show cause issued in this case, The Florida Bar, on June 23, 2014, explained that in the pending disciplinary matter, the Bar investigated five residential real estate transactions in which Petitioner served as the settlement agent for his own company, South Pointe Title Company. These five transactions involved mortgage loans totaling $5,791,000 and each involved inaccurate HUD–1 settlement statements, including the following improprieties: (1) indication of a payoff of an apparently fictitious first mortgage loan, where there was no evidence in the public record that such a loan existed, nor did Petitioner list it on the title insurance commitment or policy; (2) settlement statements reflecting that the buyer made an earnest money deposit (either to Petitioner or a third party) when there was no evidence that such a deposit had actually been made; and (3) evidence that purchasers did not provide any funds at or after the closing, with some purchasers instead even receiving payments from the proceeds. Although only five transactions served as the basis for the investigation, evidence indicated that there may have been as many as twenty additional transactions with similar fact and disbursement patterns. The Bar was unable to determine how much money lenders actually lost, due to a lack of knowledge of what the repossessed properties later sold for and the costs incurred by the lenders in the process. Additionally, the Bar stated that Petitioner, although subpoenaed, failed to provide any bank records, receipt and disbursement journals, client ledger cards, or monthly reconciliations, and provided only ten out of thirty-five requested client files.
The uncontested petition for disciplinary revocation is hereby granted subject to the continuing jurisdiction of this Court. See Florida Bar v. Ross, 732 So.2d 1037, 1040–42 (Fla.1998). The disciplinary revocation shall be effective thirty days from the date of this order, as agreed by the Bar and Petitioner, so that Petitioner can close out his practice and protect the interests of existing clients. If Petitioner 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 revocation effective immediately. Petitioner shall fully comply with Rule Regulating the Florida Bar 3–5 .1(h). In addition, Petitioner shall accept no new business from the date this order is filed unless and until he is readmitted. All pending disciplinary cases involving Petitioner are hereby dismissed.
Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399–2300, for recovery of costs from Christian Noel Folland in the amount of $11,000.00, for which sum let execution issue.
Not final until time expires to file motion for rehearing, and if filed, determined. The filing of a motion for rehearing shall not alter the effective date of this disciplinary revocation. In seeking readmission to The Florida Bar, Petitioner “may be admitted again only upon full compliance with the rules and regulations governing admission to the bar.” R. Regulating Fla. Bar 3–7.10(n).
It is so ordered.