IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA CIVIL DIVISION CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC. Plaintiff, v. CASE NO.: 00-002750-CI-20 DELL LIEBREICH, individually and as Personal Representative of the Estate of Lisa McPherson; ROBERT MINTON; THE LISA MCPHERSON TRUST; DANDAR & DANDAR, P.A., and KENNAN G. DANDAR, Defendants. __________________________________/ PLAINTIFF CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION'S POST-TRIAL MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISQUALIFY COUNSEL PRELIMINARY STATEMENT This case has been marked by untoward liberties taken by Kennan Dandar ("Dandar"), his brother Thomas, and their law firm, Dandar & Dandar, P.A. ("D&D"), including, inter alia: 1. D & D's submission to Judge Cope of Thomas' "$400 per hour" fee affidavit, for work allegedly charged to his partner, Kennan Dandar, as exacerbated by the disingenuous explanation of it offered by Thomas and Dandar to this Court; 2. Dandar's obstruction of the January, 2001, deposition of Liebreich by asserting specious "privilege" claims and instructions not to answer for over an hour and a half of questioning, conduct which was abated only after a stern warning to Dandar by this Court; 3. Dandar's later, additional discovery misconduct which impelled this Court to impose $11,824.26 in sanctions upon him; and 4. Dandar's machinations in not honoring hearing commitments before this Court, and in purposefully scheduling other cases to create a conflict he could then offer to this Court as an excuse for his inability to attend here. As bad as this conduct is, it pales next to the recent revelations which precipitated the disqualification motion at bar. Specifically, Dandar (and D & D) stands accused of conduct which is not merely among the most serious ethical violations an attorney can commit, but is, in part, criminal. That conduct by Dandar (and D &D) includes: 1) Misappropriating for his own personal use monies contributed by Robert Minton to and for the exclusive benefit of Dandar's client, the Estate; 2) Commingling his personal funds and the funds of D & D with client trust funds. 3) Violating the staff ruling by the Florida Bar in October, 1997, that Minton could not be allowed to interfer with counsel's independent professional judgment in the wrongful death case; 4) Directing Minton to withhold responsive documents duly requested in discovery, and to commit perjury respecting the money he entrusted to Dandar, Minton's involvement in strategy sessions pertaining to the conduct of the wrongful death case, and the agreement under which a Minton-selected anti-Scientology group was to receive the lion's share of any recovery in the wrongful death case; and 5) Repeatedly, in briefs, orally and in sworn statements, making misrepresentations to the courts, including, inter alia, receipt of the Minton money, theft of the Minton money and that the money was, indeed, to be used solely for the benefit of the Estate's costs in the wrongful death case. In this post-trial brief plaintiff, Church of Scientology Flag Service Organization ("the Church"), shows that the evidence of Dandar's misconduct, as charged, is overwhelming, reaching well beyond the point of any possible, reasonable doubt. Indeed, as to at least the theft of the Minton money and the commingling issues, these accusations are conclusively established by Dandar's own statements – both before this Court and other courts – with Minton's testimony merely corroborating them. In fact, as discussed below, as to two of the hotly contested issues before this Court ("strings or no strings" on the use of Minton's money and the source of the two Swiss bank checks), Dandar has now admitted that the Church's allegations – and Minton's testimony – are true. Respecting the accusations at bar that do involve, at least in part, a clash between Minton's and Dandar's testimony, as this brief shows, it was Dandar, not Minton, who had the knowledge, apprehension of the truth emerging about certain key events, and the legal skills to fabricate cover stories; it was Dandar, not Minton, who would suffer the consequences of truthful disclosure; and thus, it was Dandar, not Minton, who had the motive to, and would receive, the benefit of the fabrications. Despite the seriousness of the charges of misconduct he faced when these hearings began before this Court, and despite his ethical obligations to fully cooperate, not to obstruct, this Court's search for the truth, Dandar elected to exacerbate the situation by his conduct during these hearings, including: 1) Committing perjury before this Court; 2) Offering repeatedly shifting and inconsistent stories. Indeed, what is most remarkable is Dandar's simultaneously arguing totally inconsistent factual positions, (e.g., respecting who owns the Minton money and, more importantly, whether it had "strings or no strings") to different courts as it suits his purposes; 3) Resorting to evasiveness and dissembling in refusing to answer questions or to produce documents properly demanded; 4) Enlisting his client, Liebreich, to provide sworn testimony (respecting the Minton money), that Dandar knew was false; and 5) Attempting to obfuscate and deflect attention from the real issues at bar by making baseless accusations that the Church's counsel improperly coerced or threatened Minton to provide his damning testimony here against Dandar. In sum, while the compelling evidence establishing the conduct Dandar stood accused of at the beginning of these hearings itself impels disqualification here, by his further misconduct during these hearings, Dandar has himself provided this Court with additional, compelling grounds to disqualify him and D & D. Finally, the disqualification the Church here seeks does not even begin to recompense it for the damage Dandar has caused by his perjury, subordination of perjury and instructions to Minton not to produce relevant documents. The Church has been obliged to spend tens of thousands of dollars in discovery to overcome the Dandar-created obstacles. Accordingly, the Church requests that in addition to disqualification, this Court award to the Church and against Dandar and D & D, the Church's legal fees and expenses incurred as a proximate result of Dandar's misconduct, in an amount to be fixed hereafter. THE EVIDENCE 1. Whose money is it anyway? Strings or no strings? Preliminarily, one of the few things everyone agrees upon is that the entirety of the $2,050,000 provided by Minton is all one transaction subject to only one agreement. According to Minton, it was all entrusted to Dandar as counsel for the Estate to be used exclusively to defray the Estate's out-of-pocket expenses in the wrongful death case, while according to Dandar's original story to this Court, the Minton money was all one transaction but it was all a personal loan to Dandar with no restrictions, "no strings," as to how he used it. This agreement that there was one transaction is important because it eliminates any possibility that part of the Minton money was for the Estate and part of it was for Dandar's personal use, i.e. – two transactions – a circumstance that would require this Court to determine how much of the Minton money was attributable to each transaction. Thus, this Court's determination as to the entire $2,050.000 is somewhat simplified as that there are only two choices – either it is all for the Estate's use and benefit or it is all a "no strings" loan to Dandar. The evidence presented to this Court, including the unimpeachable documents, most of which were created by Dandar himself, demonstrates to a moral certainty that from his first check in October, 1997, through his last in March, 2002, every dime Minton gave to Dandar was entrusted to him as counsel for the Estate and was intended by Minton – and clearly understood by Dandar – to be solely for the Estate's out-of-pocket expenses in litigating the wrongful death case. First, Minton's testimony before this Court is that: Q.... Mr. Minton, I would like to go over with you. Last time you mentioned that the purpose of the funds you gave to Mr. Dandar, the Ken Dandar or Dandar & Dandar, whatever, that the agreement was that they were to be used to pay the expenses of the Estate in the wrongful death case. Do you remember that testimony? A. Yes, sir. Q. Now, are you clear on this that that was the only intention, the only allowed use of those funds, the expenses of the Estate in the wrongful death case? A. Well, from the beginning that's always been the understanding. Q. Okay. And that understanding was reached with Mr. Ken Dandar in October of 1997? A. Yes. (Ex. 6, Minton, April 19, 2002, pp. 81-82.) Second, Minton's testimony is corroborated by his contemporaneous notes on his checks to Dandar, dated October 6, 1997, August 27, 1999, January 4, 2000, and May 25, 2001, each reciting that the funds were "for [the] McPherson" case. (Plaintiffs' Hearing Exhibit 1; Ex. 6, April 19, 2002, pp. 85-86.) Third, Dandar's own contemporaneous letters to Minton dated October 9, 1997, May 12, 1999, June 17, 1999, each recited his client's, the Estate's, thanks (not Dandar's) for Minton's donations/loans (Pl. Hrg. Exs. 9, 11 and 12). Indeed, even Dandar's last letter to Minton pleading for money – his February 26, 2002, letter – expresses the Estate's thanks for his past contributions and requests more money, not for Dandar's personal use, not for him to use anyway he sees fit, not money with "no strings," but money to see the wrongful death case through trial. (Pl. Hrg. Ex. 73). Fourth, Dandar's other contemporaneous statements – both oral and written – to various courts confirmed exactly what Minton has consistently said – i.e., that the monies were given for the Estate's exclusive use and benefit in defraying its costs and expenses in the wrongful death litigation: ...the family doesn't have to pay [Minton] back unless they think they got enough money and there's no restrictions on how the money is spent except for the Lisa McPherson case." (Pl. Hrg. Ex. 21, October 1, 1999, Hearing before Judge Moody, p. 45.) Robert S. Minton has provided funding to the Estate of Lisa McPherson through plaintiff's counsel to defray the costs of the wrongful death lawsuit against the Church of Scientology for the death of Lisa McPherson. (Pl. Hrg. Ex. 24, January 3, 2001, Plaintiff's proposed Findings of Facts and Conclusions of Law on Plaintiff's Motion to Strike Witnesses and Motion for Protective Order [regarding Minton].) The plaintiff had testified in her deposition and the plaintiff filed an affidavit with this Court saying there is no agreement whatsoever with Mr. Minton except to try to reimburse him if sufficient recovery in this case. (Pl. Hrg. Ex. 25, Hearing, January 4, 2001 before Judge Quesada, p. 76.) ...no agreements exist between the Estate or any other person or entity to do anything except repay loans used for the express purpose of funding the litigation. (Pl. Hrg. Ex. 94, February 26, 2001, Motion to Dismiss Counterclaim with Prejudice, p. 7.) Fifth, as compelling is the contemporaneous sworn testimony of Liebreich herself (at least before Dandar induced her to change her story, see infra ) that her understanding from Dandar respecting the Minton money, was precisely what Minton had said. Thus: Q. Well, you do consider the money that Mr. Minton has given to be money for the benefit of the Estate of Lisa McPherson? A. Yes. Q. So that is not Mr. Dandar's money to go buy his wife an anniversary gift or himself some personal item; is that correct? A. Right. (Pl. Hrg. Ex. 32, Liebreich, May 24, 1999 Deposition, p. 173.) The testimony of Dandar's trial consultant, Dr. Michael Garko is equally emphatic. Dr. Garko testified that he was on a retainer with Dandar, (Ex. 13, Garko, Tr. August 29, 2002, pp. 102-103), and agreed that he worked with him on daily basis as his "number- one advisor" from a trial jury consultant's perspective. (Id., pp. 98-99.) Dr. Garko testified that he never heard Minton refer to the funds given to Dandar as a "loan": Q. Did you ever hear Mr. Minton classify the money that he gave me over the years as a loan to me or a loan to the estate? * * * A. I never heard him use the word loan. Q. Did he ever say who the money was going to? * * * THE WITNESS: The money was going to the estate. (Ex. 13, Garko, Tr. August 29, 2002, p. 32.) Dr. Garko went one step further, testifying that the funds from Minton were specifically not to be used for Dandar's personal enjoyment: Q. When did you hear Mr. Minton [make] any statement concerning who the money is going to? A. Over the years over the two or three years, the three years that I was working as the trial consultant on the case, we had conversations with Mr. Minton, you and I, and I can't remember the exact times or places, but it was clear to me that when we did talk about the money that the money was going to the estate to fund the litigation, that is, the Lisa McPherson wrongful death case. That was my understanding based on conversations that you and I had with Mr. Minton at various points in time over the three years. *** Q. Can you recall for us specifically where this conversation took place? A. It wasn't just one conversation, Mr. Dandar. When we did speak with Mr. Minton about funding in the case, it was clear to me that he intended the money to be channeled or funneled or whatever, directed, to the estate to be put in trust, some trust account, and to be used to fund this case. That was my understanding. I mean --. Q. But what were the words of Mr. Minton? A. I don't remember his exact words, but I can tell you what I didn't hear him say. I didn't hear him say here's some money, go have a good time. I mean, that's not what he said. I inferred it was implied I concluded from our conversations with him, even as recently as 2002 when we went up to New Hampshire that the money was to be used to fund the litigation. That was my understanding. I mean, that's as simple as it is for me. I mean, that's what it was and that's what it is in my [mind] as I sit here today testifying under oath. (Ex. 13, Garko, Tr. August 29, 2002, pp. 33-35.) At the outset of these proceedings, Dandar's sworn position was that every dime of the Minton money was a personal, nonrecourse, interest-free loan to him, not to his client, and that there were no strings on these loans, that Dandar was free to use the funds any way he saw fit, including for D & D's general overhead expenses, for Dandar's personal expenses and even for Dandar's personal investments and indulgences, such as buying luxury items. As he later explained: I could use that money any way I saw fit, period. I could buy five estates and a warehouse and cars and yachts and planes and everything else that Mr. Rosen accused me of. But -- I could do anything I wanted to with that money. (Pl. Hrg. Ex. 97, Dandar, June 6, 2002, pp. 739-740.) It was only after Dandar was confronted with this mountain of evidence during these hearings that he attempted to change his story mid-stream. That fabrication of this second story, is discussed, infra, as is Dandar's latest, damning admission – i.e., his third story, just debuted before Judge Schaeffer in July, that regardless of the recipient of the money – Dandar or the Estate – there was a "contractual relationship" between Dandar and Minton that the money was to be used for the Estate's expenses in the wrongful death case, i.e., that there were, indeed, "strings" to Minton's money. (Pl. Hrg. Ex. 82, "counterclaim" at p. 4, 4.) According to the tale he has told this Court, Dandar was free to use the Minton money any way he wanted, in his sole discretion, without accounting to his own client, the Estate, for any of it, free to use as much or as little of it as he alone decided for the Estate's expenses in the wrongful death case, because "the money was all mine." But even before his admission in the counterclaim this month before Judge Schaeffer (id.), Dandar's story was exposed for the fabrication it is by his own conduct: First, if the Minton money was, from the outset, a personal loan to Dandar with "no strings" and Dandar was free to use it as he wanted, it was not necessary for Dandar to seek an advisory opinion from The Florida Bar before taking the first check in October, 1997. Surely, if Dandar obtained a personal loan from a bank, or other lender, of money he could use any way he wanted, he would not seek The Florida Bar's approval even if he intended to use some of those proceeds to front the expenses on a contingent fee case. Thus, the fact that he sought counsel of The Florida Bar shows that the money was entrusted to him for the benefit of his client and, critically, that it was earmarked solely for one particular case. The second glaring flaw in Dandar's prevarications is his testimony that, before accepting the first Minton check, Dandar solicited and obtained his client's approval (Ex. 6, Dandar, April 19, 2002, pp. 177-178). Here again, Dandar surely would not have solicited Liebreich's approval were he to have borrowed money from a bank or other lender that he was free to use any way he wanted. Dandar did not solicit Liebreich's approval when, in 1999, he applied for a mortgage on his new home. Thus, the only reason Dandar sought his client's approval was that Minton's money came with "strings," including his involvement in the conduct of the wrongful death case. Third, Dandar apparently never told his own client about the size of Minton's donations, individually or in the aggregate, or that the Minton money was not for the Estate's benefit, but a "no strings" loan to Dandar. Fourth, while Dandar has shown himself to be a master of the self-serving letter, and while he employed that device to acknowledge Minton's "donations" (Pl. Hrg. Exs. 9, 11, 12), at no time did he ever memorialize in a letter to Minton or even a memo to the file that his claimed arrangement was all a personal nonrecourse loan to him, and that he was free to use the funds any way he wanted. Thus, Dandar would have this Court believe that he somehow neglected to reduce to writing the existence and the most significant interest-free nonrecourse terms of a $2 million loan, surely the largest amount of money Dandar had ever seen. And Dandar would also have this Court believe that as a lawyer, and a sophisticated person who invests in real estate (Ex. 7, April 30, 2002, pp. 204-205) and stock market mutual funds (id., pp. 173-175; Pl. Hrg. Ex. 58A, 59), he was content to expose himself – and perhaps his own estate – to a later suit by Minton to recover $2 million plus interest, all by neglecting to document the terms of the loan. Dandar purposefully did not memorialize what he says now are the terms of the Minton loan for one reason: had he sent Minton a letter memorializing what Dandar tells this Court were the loan terms, he could well expect an outraged response from Minton who obviously thought he was not only lending the money to the Estate, but more importantly, that he was lending it solely for use in the wrongful death case, not for Dandar to use to buy himself a yacht. Thus, Dandar never memorialized what he says now were the loan's term – not in a letter to Minton; not in a letter to his own client; and not even in a file memo or a note to his own brother and law partner, Thomas. Fifth, Dandar has offered this Court no explanation for his complete silence, for his failure to "correct" Minton as to the "strings" term of the loan in the face of Minton's notations on his personal checks to Dandar – from the first one in October, 1997, and on each of his subsequent checks including right through his last one in May 2001 (Pl. Hrg. Ex. 1) – that the funds were "Re Lisa McPherson Scientology case," or "for McPherson." And the reason Dandar never said a word about these notations is obvious – he was secretly converting the money and the last thing he would do is tell Minton, by writing him to "correct" these errors or otherwise. Moreover, Dandar's "my money, no strings" story is wholly inconsistent with common sense. Here, there is no dispute that: 1) Minton and Dandar did not know each other – had never even met or communicated – before September, 1997, as far as Dandar knew (Ex. 6, April 19, 2002, pp. 307-308.); and 2) From the outset Minton expressed and Dandar acknowledged Minton's intention to continue his crusade against Scientology through the vehicle of the Estate's wrongful death case. Yet Dandar would have this Court believe that Minton not only loaned the money to Dandar personally, not to the Estate, but that Minton did not even care whether his money was used to advance his anti-Scientology agenda or whether Dandar used it for his personal benefit. Consistent with the familiar axiom that nobody ever told just one lie, Dandar was obliged to fabricate incredible explanations for his conduct that were hopelessly inconsistent with his "its my money, no strings" story. First, Dandar repeatedly testified that the reason the Minton money was a loan to him personally, not to the Estate, was that it was he, not the Estate, who was obliged under his retainer agreement with the Estate to advance the costs of the wrongful death action (Ex. 6, April 19, 2002, pp. 172, 231, 306-307). This was the keystone to Dandar's attempt to explain why the loan was to him, although it does not explain, and indeed, contradicts, Dandar's "no strings" story. More importantly, however, when Dandar was then confronted with his retainer agreement (Pl. Hrg. Ex. 52) which, in the second unnumbered paragraph, expressly provides that the client, not Dandar, is responsible for advancing costs, Dandar's falsehoods were exposed, leaving him with no ability to explain his perjured testimony save for some feeble attempt to reference some other agreement ("I'm just not understanding why its not in there. Maybe its somewhere else.") (Ex. 6, April 19, 2002, pp. 346-348), which to this day, Dandar has failed to produce. Further, that Dandar fabricated specially for these hearings that he, not his client, was obliged to advance the costs of the wrongful death case, is conclusively established by Dandar's August 2, 2002, filing of an accounting with the probate court. That filing (Pl. Hrg. Ex. 95) discloses, for the first time, a 1998 settlement with one of the original defendants in the wrongful death case and the disposition of the settlement proceeds. Specifically, out of the $100,000 settlement proceeds, Dandar took a 40% contingency fee for himself, distributing $40,000 to the Estate's beneficiaries, and retained the remaining $20,000 as his client's advance deposit against future costs in the case. (Id., Schedule B.) And despite this, Dandar swore under oath that it was his, not his client's obligation to advance costs. Second, respecting the letters Dandar wrote to Minton acknowledging his "donations" and expressing his client's (not his) thanks for the money (Pl. Hrg. Exs. 9, 10, 12), Dandar was unable to explain them, offering only evasive doubletalk: Q. ...Why don't you give the Court any explanation you have for why, in writing back to Mr. Minton to acknowledge receipt of what you're telling us is a loan to you, you thank him for his, quote, donation? A. Because that's the way I dictated it back in October of '97. There's no explanation for it. Q. But we can agree, sir, that if I lent you money it would be a mistake to call that a, quote, donation, right? We would call it a loan, right? A. It's a donation if the case is lost. It's a loan if the case is won. And that's exactly how Mr. Minton correctly identified it in his deposition. (Ex. 6, Tr. April 19, 2002, pp. 209-211.) (See, also, id., pp. 229-230, 236.) But what is remarkable here is that Dandar, who has a penchant for parsing sentences and who employs semantic word games to defend his conduct, could offer nothing coherent about his use of the word, "donations," in his letters to Minton: Q... [T]his letter says that you have advised, second paragraph, "Please be advised if the client does consent and is very appreciative of your donation." The client you are referring to in the second paragraph is Dell Liebreich, right? A. No, it's the Estate. Q. The Estate which is operated through Dell Liebreich as personal representative? A. Correct. Q. So when you said "the client" you were referring to Ms. Liebreich as the representative of the client? A. Yes. Q. She's the one who said, I consent and I'm appreciative, right? A. Right. Q. So, let's see if I understand this, does a client have to consent to somebody making a personal loan to you, Mr. Dandar? A. That's what the Florida Bar said. (Ex. 6, Tr., April 19, 2002, pp. 213-14.) Similarly remarkable is Dandar's inability to explain why his client was thanking Minton, as Dandar stated in his letters to Minton. (Id.) According to Dandar, he, not his client, was responsible for advancing the costs of suit, thus, Minton's largesse was of no benefit to the Estate. It was only a benefit to Dandar who was spared the most customary conditions – interest and recourse – for a loan he would otherwise have to obtain from a bank. Moreover, why would Liebreich thank Minton for making a personal loan to Dandar that he was free to use solely for his personal expenditures? What difference would it make to Liebreich if Minton gave her attorney money to buy himself realty, mutual fund shares, or a yacht? Did Liebreich thank the bank that gave Dandar a home mortgage in 1999? Next, Dandar's scheme to convert the money and his multiplying inconsistencies were further exposed by the issue of who repays Minton out of the recovery in the wrongful death case. Dandar has repeatedly stated to the courts that at the end of the case, it is only the Estate that will repay Minton out of the proceeds of the case for all the monies he advanced. Based upon this, were one to believe Dandar's current "no strings" story, one would be obliged to conclude that Dandar, after misappropriating the lion's share of the Minton $2,050,000, was maneuvering to have his own client repay his "personal loan" out of the proceeds. Similarly, Dandar's statements to the courts have repeatedly claimed that this Estate – not Dandar – will decide whether and how much to repay Minton. (Pl. Hrg. Ex. 21, Tr. Oct. 1, 1999, p. 45; Pl. Hrg. Ex. 98, Tr. December 4, 2000, p. 65.) The Estate would not be the one to decide if Dandar were to repay a personal loan. The Estate would not decide whether Dandar pays his home mortgage. The reason that all of the pre-hearing testimony was that the Estate decides payment is because the agreement with Minton is that the Estate and only the Estate would get the benefit of the money – not Dandar. As Dandar explained how the proceeds of the wrongful death case would be divided, two things became clear: 1) Dandar's order of distribution makes Dandar, not his client, the principal financial beneficiary of any recovery or settlement; and 2) Dandar's own financial interest may well lie in abandoning his duty to his client and losing the wrongful death case. As Dandar explained, out of any gross recovery, he gets his 40% contingent fee off the top. The Estate then decides how much to reimburse Minton for the costs and expenses, and then Dandar repays Minton for the portion of the $2,050,000 Dandar had used for non-Estate expenses. (Ex. 7, Tr., April 30, 2002, pp. 188-191.) To appreciate this arrangement, assume a $1 million recovery in the wrongful death case. Assume further, an allocation of Mr. Minton's monies to be $850,000 in litigation expenses and $1.2 million in "personal loans" to Dandar. For the sake of this argument, ignore RTC's $600,000 judgment against the Estate plus any judgment for damages and contractually required attorneys' fees the Church gets in this case, all of which must be paid. From the $1 million, Dandar takes his 40% off the top. That gives Dandar $400,000 against which $1,200,000 is owed to Minton for his "personal loan," leaving Dandar a net loss of $800,000. The Estate grosses $600,000 from the recovery, with an obligation to repay $850,000 in litigation expenses, resulting in a net loss of $200,000. A $1 million recovery is a major financial setback for both Dandar and the Estate. Now, assume the same facts except for a $3 million recovery. Dandar's 40% off the top gives him $1.2 million gross, less that same figure for the "personal loan," leaving Dandar at net $0 for all his time and effort as an attorney. Upon these assumptions, the Estate would gross $1.8 million from the $3 million recovery and net $950,000, less than its counsel's contingent fee. Obviously, if the personal component of the repayment obligation exceeds the assumed amount, even a $3 million recovery results in a net loss for Dandar. But it gets worse. According to Dandar's description of his agreement with Minton, the loan to Dandar is non-recourse and need not be paid back if the Estate loses the wrongful death case. (Ex. 6, Tr. April 19, 2002, pp. 210, 211). Thus, by his own account, if Dandar loses the case, he gets to keep all of the estimated $1.2 million of Minton's money he has converted to his own use. Indeed, the only way Dandar does as well personally as pocketing $1.2 million by losing the case, is to get a verdict of more than $6 million – one that would not likely stand – out of which Dandar's 40% off the top would yield him $1.2 million net after repaying $1.2 million to Minton. Therefore, Dandar's "it's my money, no strings" tale places him in the unethical position of being at odds with his own client by creating a situation wherein his own personal gain lies in losing the wrongful death case. In addition, when one adds the 40% contingent fee Dandar would get from a recovery to the "contingent" (i.e., nonrecourse) payment he says he received from Minton, Dandar would be paid twice for his legal services, raising additional ethical questions. Dandar has been unable to offer any explanation for the countless times that he sat mute in depositions while witnesses (e.g. Minton, Liebreich) gave sworn testimony that the Minton money was loaned to the Estate, not to Dandar, and that it was to be used solely for the Estate's expenses in the wrongful death case – not to satisfy Dandar's personal avarice. Dandar was present throughout all of the deposition testimony given on these subjects by Minton and Liebreich, discussed supra. (Pl. Hrg. Exs. 70, 32, 99, 100.) While Dandar does not hesitate to create extensive errata sheets of "corrections" to deposition transcripts and file them with this Court, see, Dandar's errata to Liebreich's January, 2001, deposition transcript, (Ex. 9), Dandar filed no errata to this issue in any of these depositions, but now tells this Court that they were all incorrect. The evidence even indicates when Dandar formed the intent to convert the Minton money: between October, 1997, and February, 1998. Specifically, when Dandar received the first Minton check in October, 1997, he properly deposited it into the D & D client trust account. (Pl. Hrg. Exs. 8 & 9.) That was the last check Dandar deposited into his trust account. When he received the second Minton check in February, 1998, he deposited it and every subsequent check into either the D & D operating account or one of Dandar's personal accounts (Pl. Hrg. Exs.10, 11, 13, 14, 15, 58A, 59.) But no matter the overwhelming evidence against him, no matter that he has been unable to present a single witness or a single document to corroborate his testimony, Dandar was trapped into sticking to his "it's mine, no strings" story because he could not admit his plan to get as much money as he could from the golden goose, Minton, and then to take the lion's share of it to enrich himself. If he conceded that the Minton money belonged to his client and came with strings, he would have to admit his conversion, or, at a minimum, improper commingling. The only way to cover those acts of misconduct was for Dandar to fabricate the "it's mine, no strings," story and stick to it no matter how much evidence piled up showing it to be false. Thus, to this very day, Dandar has refused to provide any accounting of how Minton's $2,050,000 has been spent, not to his own client, not to this Court, not even in the accounting he was ordered to file with the probate court. (Pl. Hrg. Ex. 95). To insure that the Church and no third party ever found out that he had converted the Minton money, Dandar resorted to the subterfuge that whenever he had to pay expenses in the wrongful death case or this case, instead of drawing the check on his personal account or the D & D general account where the Minton money was, he first transferred it to the D & D client trust account and then issued the checks on that account so that it would appear to the recipient and anyone who saw the checks, that the Estate's expenses were being paid out of his client trust account. (Pl. Hrg Ex. 15A.) Dandar's explanation for this two- transaction payment method – itself damning evidence of his guilt – is that this made the accounting easier. (Ex. 6, Tr., April 19, 2000, pp. 199-200). In truth, however, Dandar understood that if he issued checks to the Church's expert witnesses on his personal account or on a D & D account, it would raise a question why his client's money was in a non-trust account. Dandar's solution was the two- transaction payment method that he now claims he employed because it is simpler than a one-step payment method. Although he had already received $1,800,000 from Minton as of June, 2001, and although he likely spent only a fraction of it for the Estate's expenses in the wrongful death case, when Minton announced that he would provide no more money (Def. Hrg. Ex. 1, e-mail, August 24, 2001), Dandar first made a public plea for funds (Pl. Hrg. Ex. 93, Internet Posting), had Ms. Liebreich make a public plea for donations (Pl. Hrg Ex. 58), and then wrote to Minton on February 26, 2002, (Pl. Hrg. Ex. 73) pleading desperately for more money to complete the case. This evidence lays bare the whole of Dandar's scheme. He was not just engaged in converting the lion's share of the Minton money and diverting it from its intended use, but was dealing dishonestly with his own client in telling her he was running out of the money needed to try her case. Further evidence of Dandar's scheme to defraud Minton and his own client is apparent from the events of April and May, 2000. Dandar, claiming to Minton a need for more money for the wrongful death case and asking that it be in untraceable funds so he could hide it (see, infra), prevailed upon Minton to give him the first Swiss bank check of $500,000 that Minton arranged to have issued on May 1, 2000, and then personally delivered to Dandar. (Pl. Hrg. Ex. 5). But Dandar claimed it was not enough, and on May 4, 2000, the accommodating Minton gave Dandar another check, a personal one for another $50,000 (Pl. Hrg. Ex. 81). And consistent with Dandar's criminal conduct, by his letter to Minton dated February 26, 2002, (Pl. Hrg. Ex. 73), Dandar, despite having already received $1.8 million from Minton and having spent, at most, a fraction of that in the course of the wrongful death case, pleaded poverty and begged Minton for more money to complete the case. Next, is Dandar's disingenuous claim that the two Swiss bank checks totaling $750,000 were not Minton's money, but came from some unknown benefactor. Here, Minton's testimony is: Q. ... beyond the 1.3 million of personal checks that you signed made out to either Ken Dandar or Dandar & Dandar for purposes of defraying the cost, the expenses of the wrongful death case, did you, sir, provide any additional monies for that purpose to either Ken Dandar or the firm of Dandar & Dandar? A. Yes, I did. Q. Will you tell us, please, what you did? A. I caused two checks, one in the amount of five hundred thousand dollars to be issued to I believe it was Ken Dandar in around May of 2001 and an additional check for two hundred and fifty thousand dollars I caused to be issued to Mr. Dandar in February or early March, late February, early March time frame of this year. Q. And were those checks of the same kind, mainly checks drawn on your personal account and signed by you? A. No, sir. Q. What kind of checks were these? A. These were checks that were issued by Union Bank of Switzerland. Q. The New York office of that bank? A. No, the Zurich office. They were payable -- no, they were issued by the Geneva office of Union Bank of Switzerland. I think they were payable at Union Bank of Switzerland New York. Q. So these are in the nature of bank checks that don't have a depositor's name on it like Robert Minton, but have the name of the bank? A. Correct. Q. And both of these checks, five hundred thousand and two hundred and fifty thousand, were made out to whom, sir? A. I believe they were both made out to Ken Dandar. Q. Can you tell me how it came about by way of discussion with Mr. Dandar, Ken Dandar as to how you came to issue these two checks for seven hundred and fifty thousand dollars total? A. Well, sometime in Springish of 2001, Mr. Dandar said, you know, he needed money to continue with the case and basically bring the case to trial and, you know, he requested that I get him some money. And, you know, and he said that he wanted to do this in such a way that it didn't appear that the money came from me. He mentioned several reasons why he didn't want it to appear to come from me. Number one, that the wrongful death case was getting to be extremely messy because of my financial contributions to the case. Secondly, that he did not wish to run this money through his trust account. That he had another means of hiding this money from the Scientologists as well as some of his employees. He mentioned specifically Michael Garko and Tom Haverty where I think Mr. Dandar was trying to, as he explained to me, trying to cut back on payments to them in order to conserve money to continue the case. Q. Did Mr. Dandar say anything to you on the subject of whether you should or should not disclose these payments? A. Yes. He said, you know, that these should not be known that they are from you and you shouldn't -- as recently as March he said, you know, I haven't revealed these payments to the Court and you shouldn't reveal them to the Court. (Ex. 10, Tr., April 9, 2002, p. 6-9.) Q. Okay. If I -- did there come a time in February of 2002 when you issued another or caused to be issued another bank check to Mr. Dandar? A. That's correct. Q. May I ask you, sir, to open what is in front of you the folder that is marked Exhibit 6. A. Sorry. Just one second. Did you say February 2002? Q. I'm sorry, March of 2000. A. It was March, yes. Q. March of 2002. And would you open the folder that is marked Exhibit 6, please, sir? A. Just one second. Yes. Q. Could you tell us -- tell the Court what that is. A. That's a check for $250,000 payable to Ken Dandar issued by Union Bank of Switzerland dated March 7th, 2002. Q. You -- A. Drawn on Chase Manhattan Bank in New York. Q. And you caused that check to be drawn -- A. I did. Q. -- by Union Bank of Switzerland? A. I did. Q. Okay. Now, prior to the delivery of this check to Mr. Dandar, were there any -- was there any conversation which led up to this between you and Mr. Dandar? A. Ah, yes. There were numerous conversations. Mr. Dandar came to visit me in New Hampshire in early February along with Dr. Garko for the sole purpose of, you know, soliciting funds for the case. And, you know, I had been somewhat reluctant in the past few months prior to that meeting to give money, give any further money. And so Mr. Dandar and Mr. Garko came up there to, you know, give me a sort of sales pitch on the state of the case. Q. And was there any discussion at that time about how to issue what kind of check to provide by way of funds; whether it be a personal check or another Swiss Bank check? A. Um, yes, it was discussed obliquely though. It was discussed in an oblique way because Dr. Garko was there. And going back to that May 2000 event, if I could just, because this is somewhat relevant to -- Q. Sure. A. -- the issue of the March check. As I had stated before in this Court, one of the principal things that Mr. Dandar had said to me at the time was that he was going to not tell his trial team, basically, that he had money, and that he would basically be telling them that I wasn't giving money at that stage and he was financing out of his own personal retirement account this case. So, going back to February of 2002 when Mr. Dandar and Mr. Garko came up there, because of Mr. Dandar's concerns about Mr. Garko not knowing about these funds that he was apparently, you know, putting in this place where nobody would find out about it, you know, the discussions at that time were basically referring to friends of mine in Europe who might be able to help. You know, Mr. Dandar would still, if we were in private, he would see, you know -- he would say, you know, is Fred going to do anything or not? Q. Fred meaning his pet name for you? A. Well, his pet name for the source of funds that didn't necessarily run through his trust account. Q. Meaning -- but that source was you? A. That's correct. (Ex. 6, Tr., April 19, 2002, pp. 52-55.) Dandar's incredible response is that these bank checks were not Minton funds because they did not have Minton's name on them. (Id., pp. 267-268). This Court may take judicial notice of what the average person on the street knows – that when one purchases a bank check (a cashier's check), what one gets is the bank's check and not one drawn on the purchaser's account, and that many banks use an instrument that does not have a place to identify the bank's customer. For Dandar to point to the absence of Minton's name on these bank checks is meaningless because these checks do not bear the name of anyone – not even Dandar's mythical, mysterious, benefactor. Dandar's "defense" that these two checks do not bear Minton's name – and therefore are not his – is exposed as a sham simply by looking at the checks themselves: the two Swiss bank checks (Pl. Hrg. Exs. 5, 6) employ a form that does not have a place to type in the name of the purchaser. Nor can Dandar explain the coincidence that the first of these checks was handed to him by Minton and the second mailed to him by Minton promptly upon Dandar telling Minton that he needed more money. Equally incredible is Dandar's testimony that while he understood that the Swiss bank checks were a loan, not a gift, when asked how he could ever repay this mystery man's loan if Dandar did not even know his identity, Dandar responded: When the case is over and there was money to pay back I would call Mr. Minton and say, Who do I write the check to? (Ex, 6, Tr. April 19, 2002 at p. 221) The mystery man tale aside, the critical fact is that even according to Dandar, the $750,000 in Swiss bank checks were given him on the same basis as the rest of the Minton money, i.e., as a loan to be repaid by the Estate out of the proceeds of the wrongful death case. (Ex. 6, Tr., April 19, pp. 340-345.) If this Court finds that the Minton money was loaned to the Estate, with strings, it would find, a priori, that the bank check funds were also for the exclusive use of the Estate regardless of the source. As with the whole of his testimony, Dandar has no witnesses and no documents to corroborate any part of his story that the Swiss bank checks were from some third party. But what Dandar has given this Court, and what is more enlightening is his remarkable, unexplained conduct respecting the two Swiss bank checks in contrast to his October, 1997, conduct. Specifically, Dandar explained at great lengths that in October, 1997, when Minton first appeared and offered him money, Dandar was so suspicious, so cautious that he was reluctant to take it. (Ex. 6, Tr. April 19, 2002, p. 174-175.) He testified he would not accept it until he first cleared it with The Florida Bar and informed Liebreich and obtained her consent. (Id., 176-178.) Yet, when it came to a $750,000 Swiss bank check, Dandar exhibited no hesitation, no need to clear it with anyone, no need to call The Florida Bar, no need to tell his client, and instead, he just deposited the funds into his personal mutual fund account. (Ex. 7, Tr. April 30, 2002, pp. 172-175; Exs. 58A, 59.) Dandar was trapped into fabricating his story of the mysterious benefactor by his own avarice. Unwilling to share the Minton spoils with others, Dandar told Dr. Garko, to whom he is indebted for fees for past services as a trial consultant (Ex. 13, Garko, Tr. August 29, 2002, p. 102-104), that the Minton money had run out, and he could not pay Dr. Garko. (Ex. 6, Tr. April 19, 2002, pp. 53-54.) Hence, Dandar's request to Minton that he not only provide those funds in untraceable form but that he not say anything about them to anyone else, e.g., Dr. Garko. But this Court need no longer weigh Dandar's "it was not Minton's money" tale respecting the two Swiss bank checks because it is no longer a disputed issue. After reviewing his April testimony before this Court, after appreciating how bizarre and unbelievable it was, when faced with piercing questions in the wrongful death hearing, including from Judge Schaeffer herself, Dandar finally admitted that the two Swiss bank checks were, indeed, Minton's money. (Pl. Hrg. Ex. 96, Tr. June 4, 2002, pp. 334-341.) Thus, after wasting this Court's time with his tale about a mysterious benefactor, Dandar conceded the truth of Minton's testimony. Dandar has acted in a manner completely consistent with his modus operandi as a witness: "if the record says that, that would be correct." (Ex. 7, Tr. April 30, 2002, p. 171.) In sum, as against Dandar's uncorroborated and unsubstantiated claim that the Minton money was a personal, "no strings" loan to him, the overwhelming evidence, including out of Dandar's own mouth and word processor, shows that every dime of the Minton- supplied $2,050,000 was both intended by Minton and understood by Dandar (and Liebreich herself), to be for the exclusive use and benefit of the Estate's expenses in the wrongful death case, and that Dandar, during the period October 1997 – February 1998, concocted and has since been carrying out his criminal scheme to steal the lion's share of the funds. And now that Dandar has conceded in his new counterclaim pleading before Judge Schaeffer, (Pl. Hrg. Ex. 82, at 4), that his "no strings" talk is false, the primary question remaining to be decided by this Court is the remedy for Dandar's fully proven, partially admitted misconduct. 2. Commingling As discussed infra, Argument, Point 2B, there is little more basic to an attorney's obligations than keeping separate his funds from those of his clients. Because commingling creates an appearance, if not a presumption, of attorney theft of client funds, a breach of this duty is regarded by the bar as a serious offense. Here, no matter which story respecting the Minton money that this Court decides to believe – Minton's story, Dandar's original "it's my money no strings" story, Dandar's mid-hearing shift to a different story, or Dandar's latest, third story, conceding the "strings," Dandar has, by his own testimonial admissions, violated the "no commingling" commandment. First, Dandar admits – and the documentary evidence confirms – that Minton's first check in October, 1997, was deposited into the D & D client trust account. (Ex. 6, Tr., April 19, 2002, p. 199.) If, as Dandar originally claimed in these proceedings, the Minton money, from that first dime, was always a personal loan to him, then Dandar improperly commingled those personal funds with his clients' money in October, 1997. Second, Dandar admits that after that October, 1997, deposit, he transferred the Minton money from the client trust account into the D & D general account to pay D & D's general overhead expenses such as rent and utilities. (Id., pp. 201-203.) Thus, if this Court were to credit either 1) Minton's testimony or 2) Dandar's first story or 3) Dandar's second story or 4) Dandar's third story, it would necessarily find that Minton's October, 1997, funds belonged to the Estate and that in transferring the funds from the client trust account to the Dandar & Dandar general account, Dandar commingled client funds with his firm's general funds, at best. Third, it is undisputed that Minton's February 5, 1998, check was not deposited into the D & D client trust account, but into the D & D general account. (Pl. Hrg Ex. 10.) Thus, were this Court to credit either 1) Minton's testimony or 2) Dandar's second story or 3) Dandar's third story, it would find that these funds belonged to the Estate, and Dandar is again guilty of at least commingling, if not worse. Fourth, it is undisputed that every check from Minton, post-October, 1997, and right through February, 2002, (including the two Swiss bank checks), was deposited into either a Dandar personal account or the D & D general account. (Pl. Hrg. Exs. 5, 6, 8-11, 13, 14, 58A, 59). Thus, if this Court were to credit either 1) Minton's testimony or 2) Dandar's most recent third story (see, Plf. Hrg. Ex. 82, at 4), it would necessarily find that Dandar is guilty of at least commingling, if not outright theft. Evidence of Dandar's improper commingling, and of his further ethical violations is his lame explanation for depositing several of Minton's checks (including the two Swiss bank checks), into his personal accounts (i.e., his Putnam mutual fund account): "I put it into other accounts that made interest. I was trying to make some money on this money so I wouldn't have to keep going back and telling Mr. Minton, Well, do you want to give us some more money?" (Ex. 6, Tr. April 19, 2002, pp. 201-202.) But Dandar could, possibly, have accomplished that by depositing the funds into an account in his client's name where it could earn the same interest. 3. Violation of the Florida Bar Rules of Practice Dandar's own testimony is that before accepting Minton's first check in October, 1997, he first sought an opinion from The Florida Bar. The Bar purportedly stated that Dandar could accept the Minton money for use in the wrongful death case on condition that Minton not be permitted to have any say in the conduct of the wrongful death case. (Ex. 6, April 19, 2002, pp. 174-177.) The Florida Bar opinion would be consistent with the Florida Rules of Professional Conduct 4-1.8(f)(2), which provides that it is improper for an attorney to permit a third- party who pays that attorney for representing a client "to interfer[e] with the lawyer's independence of professional judgment or with the client-lawyer relationship." It is not necessary that the third-party's conduct rise to that level of "control"; mere "interference" renders the attorney's action misconduct. "Interfere" means "enter into, or to take part in, the concerns of others." Black's Law Dictionary, p. 329 (6th Ed. 1990). Minton's testimony before this Court (Ex. 10, April 9, 2002, pp. 16-19), was that in the fall of 1999, a meeting was convened in Dandar's office to discuss whether to move to amend the complaint in the wrongful death case to add Mr. Miscavige (the worldwide ecclesiastical leader of the Scientology religion) as a party defendant there. Minton, Ms. Brooks (who worked for Minton and was paid with his money), and Dr. Garko (who worked for Dandar as a jury specialist but was paid with Minton money), all participated in this strategy session (apparently to the exclusion of Dandar's "client," Ms. Liebreich) regarding the conduct of the wrongful death case (Ex. 10, Tr., Minton, April 9, 2002, pp. 16-19; Ex. 13, Garko, Tr. August 29, 2002, pp. 50-57) out of which emerged the decision to file the motion to amend on December 3, 1999. Dandar's disregard of The Florida Bar ruling and the Florida Rules of Professional Conduct was knowing and intentional. Indeed, it is precisely because Dandar knew that he was violating the Bar's directive that he then instructed Minton and Brooks to commit perjury in depositions and to deny and never disclose the strategy meeting with Dandar. See, infra. Dandar has not denied this under oath before this Court. 4. Improper Directions to Minton re Documents and Deposition Testimony First, respecting Minton's involvement in the conduct of the wrongful death case in violation of The Florida Bar ruling and the Florida Rules of Professional Conduct, Minton's testimony is that as he and Ms. Brooks were leaving the strategy meeting in Dandar's office, Dandar told them "we should never discuss that this meeting ever occurred in any way." (Ex. 10, April 9, 2002, p. 19). And later, as Minton was just about to be deposed, Dandar reiterated that instruction to Minton to commit perjury by denying that the meeting ever occurred: Sometime prior to my deposition. I don't know exactly when.... Mr. Dandar said, do you remember the meeting that never happened, and I said no. And he said that's the correct answer. (Id., pp. 19-20.) Minton complied, committing the perjury Dandar directed. (Id.) Minton's testimony has a distinctive ring of truth. First, Minton had no reason to lie about his involvement in the wrongful death case. Second, since he is not a lawyer and would have no reason to be concerned about The Florida Bar rules, Minton lacks any motivation to lie about those events except to do so at Dandar's request to protect Dandar. Respecting Dandar's obstruction of justice and subornation of perjury regarding the Swiss bank checks, Minton swore: 37. I was later deposed about the amount of money I had provided to fund the wrongful death case. Prior to my deposition Mr. Dandar told me to ignore this check for $500,000 and only concentrate "on the checks you have written." When asked in deposition how much money I had provided, I testified falsely and omitted this $500,000 check. 38. I was also served with a deposition subpoena in the wrongful death case to produce all documents relating to my payments to Mr. Dandar or his law firm. Mr. Dandar told me not to produce this check for $500,000. He said that he had not disclosed this check to the Court and that I should not disclose it either. He told me that I did not have to disclose the check because I did not write it. He said the check came from "Fred." Fred was Mr. Dandar's nickname for me as the source of funds that would not be traced back to me. (Ex. 11, Second Affidavit of Robert Minton, 37-38.) (Emphasis in original.) (See also, Ex. 6, Tr., April 19, 2002, pp. 112-113.) Minton's testimony bears an unmistakable ring of truth and it is entirely consistent with the other evidence. First, it is consistent with Dandar's scheme of converting the Minton money and hiding the two Swiss bank checks even from his confidants, Dr. Garko and Thomas Haverty, even as he was crying poverty to them as the reason he could not pay them. (Ex. 13, Garko, Tr. August 29, 2002, pp. 102-103.) Second, Minton, who freely admitted the other monies he gave Dandar, had no reason to lie to conceal the Swiss bank check payments. Third, Dandar's instructions to Minton not to produce any documents relating to, and not to testify about, the Swiss bank checks and Dandar's statement that he had a way to hide those funds (Ex. 6, Tr., April 19, 2002, p. 48), is completely consistent with what Dandar did with those two bank checks – he deposited them into his personal account, Putnam Mutual Fund in Massachusetts (Pl. Hrg Exs. 5, 58A, 6, 59), and not into any of his personal accounts in Florida. Were it not for Minton's recent admissions, there is no way the Church or anyone else would have found out about the two Swiss bank checks or where Dandar hid them. But the single most important, most damning aspect of this Swiss bank check affair, is that it convincingly and conclusively establishes Dandar's conversion, commingling and perjury before this Court on the "whose money is it" issue. Here, the smoking pistol is that the Dandar-concocted justification for Minton not to disclose the Swiss bank checks (because Minton had not signed them) is substantively identical to Dandar's explanation before this Court that those checks were not Minton's money because his name did not appear on them. (Ex. 6, Tr., April 19, 2002, pp. 267-269.) The inescapable conclusion is that both like fables emanated from one single source – Dandar. The third subject as to which Dandar importuned perjury by Minton – and caused his client, Liebreich, to commit perjury, too – is the 1997 agreement made between Minton and the Estate, through Dandar, for the lion's share of any wrongful death case recovery to be contributed, through Minton, to an anti-Scientology group. There, despite Dandar's evasiveness and perjurious denials that such an agreement ever existed, the overwhelming evidence from everyone else – Minton, Liebreich and Liebreich's siblings – all confirm that very agreement and that it was entered into with Minton by the Estate, acting through Dandar himself, and while Dandar was present, defending the deposition without comment or correction: A. ... So I said [to Mr. Dandar], well, in order to get these Scientologists off of the case that everybody is in this for the money, she ought to just agree to donate the bulk of any money that she gets out of this case to a cult awareness type organization to keep other Lisa McPhersons from happening. That's it. * * * Q And [Mr. Dandar's] response was, what? A Well, he says, I've already had that idea but I haven't discussed it with Dell Liebreich yet. Q Has he since told you that he discussed it with Ms. Liebreich? A Yes. Q What did he say? A He said she agreed to do just that. Q When did he tell you this? A I think the 5th of December ." (Pl. Hrg. Ex. 70, Minton January 12, 1998 deposition, pp. 65-66.) Q. Is it an accurate description of your agreement that, – is it correct, that you, on behalf of the Estate of Lisa McPherson, have agreed to donate the bulk of any money that you get out of this case to a cult awareness group? Is that accurate? A. Yes. Q. Has that been discussed with your other siblings? A. Yes. Q. And have they agreed to that? A. Yes. * * * Q. What cult awareness group? A. Lisa McPherson Q. Lisa McPherson what? A. Memorial. It's to help other people." (Pl. Hrg. Ex. 53, Dell Liebreich May 24, 1999 deposition, pp. 198-199.) Q. [h]ave you authorized Mr. Dandar, your sister, Dell, or anyone in behalf of you, to – to announce that the bulk of any funds that were received from this lawsuit against the Church of Scientology will be donated to a cult awareness or an anti-Scientology group? A. Yes. I agree that a substantial amount should be donated to the Lisa McPherson Cult Memorial Fund. (Pl. Hrg. Ex. 54, Lee Skelton (Dell Liebreich's sister) May 24, 1999 deposition, pp. 25- 26.) A ... we discussed this recently, that when there was a settlement, that the majority of the money would go toward a foundation for Lisa McPherson, to prevent things like this happening to anyone else. (Pl. Hrg. Ex. 55, Ann Carlson (Dell Liebreich's sister) May 24, 1999 deposition, p. 19.) Q. Now, do you recall testifying at your last deposition that you and your sisters had a discussion about how moneys that might be obtained either in settlement or from a judgment in this case would be contributed to a foundation for Lisa McPherson to prevent things like this happening to anyone else, do you remember testifying to that under oath? A. Yes. Q. Is this trust, the Lisa McPherson Trust, that foundation that you were referring to when you gave that testimony? A. Yes. (Pl. Hrg. Ex. 56, Ann Carlson July 27, 2000 Deposition, p. 225.) Q. Okay. Directing your attention to the end of November -- excuse me, the end of 1999 and into the early part of 2000. Mr. Minton, did you go on a radio show and announce this agreement with the Estate to contribute the lion's share or a substantial amount of the proceeds in the wrongful death case to an anticult group? A. Yes. This was about the time the Lisa McPherson Trust was being formed. You say December of '99? Q. December of '99, beginning of 2000, that period of time. A. Yes. Yes. Q. And you made that statement public based upon Mr. Dandar having told you that the Estate had agreed to that? A. That's right. And I had previously testified in court about this -- not in court, in deposition that this agreement was basically in place. (Ex. 6, Tr. April 19, 2002 Testimony, pp. 65-66.) Later on, however, Dandar became concerned that Minton's publication of the agreement with the Estate was becoming detrimental to his litigation strategy and he therefore enlisted Minton to commit perjury denying that the agreement ever existed. The occasion for debuting this perjury was Dandar's motion, dated December 7, 2000, to strike Minton from the witness list for the wrongful death trial. In support of his motion, Dandar submitted both an affidavit from Minton falsely denying that the agreement ever existed (Pl. Hrg. Ex. 69) and a like, perjurious affidavit that he prepared and had Liebreich sign (Pl. Hrg. Ex. 33). Dandar submitted those knowing that they were perjurious. Just as was the case with the "whose money is it" issue, Dandar, despite his proclivity for filing errata to deposition transcripts, sat through one deposition after another of Minton, Liebreich and her sisters, all testifying to the very agreement respecting the proceeds that Dandar now denies; and not once did he correct them, not once did he "cross-examine" them and not once did he prepare or file errata to "correct" their answers. Yet in the face of over two years of Dandar's inaction during over half a dozen depositions, Dandar now tells this Court that all of that testimony was false, that there was never any agreement respecting the proceeds of the wrongful death case, and that he did not commit or suborn perjury when he denied such an agreement ever existed. 5. Dandar's Misrepresentations to the Courts – Judicial Estoppel Despite the Third Circuit's seminal, venerated admonition that attorneys not "play fast and loose with the Courts," Dandar has continued to do just that. Indeed, Dandar has demonstrated that he will tell a court whatever will aid his argument on the matter there at bar, without regard to whether it is true and without regard to whether it is inconsistent with statements he has or will make to other courts. As addressed above, Dandar's assertions to various courts confirmed the testimony of Minton that the monies were given for the Estate's exclusive use and benefit in defraying its costs and expenses in the wrongful death litigation. See, (Pl. Hrg. Ex. 21, October 1, 1999, Hearing, p. 45.)("no restrictions on how the money is spent except for the Lisa McPherson case."); (Pl. Hrg. Ex. 24, January 3, 2001, Plaintiff's proposed Findings of Facts and Conclusions of Law on Plaintiff's Motion to Strike Witnesses and Motion for Protective Order) ("Minton has provided funding to the Estate of Lisa McPherson through plaintiff's counsel to defray the costs of the wrongful death lawsuit"); (Pl. Hrg. Ex. 25, Hearing, January 4, 2001, p. 76.)("plaintiff filed an affidavit with this Court saying there is no agreement whatsoever with Mr. Minton except to try to reimburse him if sufficient recovery in the case."); (Pl. Hrg. Ex. 94, February 26, 2001, Motion to Dismiss Counterclaim, p. 7)("...no agreements exist between the Estate or any other person or entity to do anything except repay loans used for the express purpose of funding the litigation.") These representations were entirely consistent with Liebreich's testimony, affirming her understanding respecting the Minton money, (Pl. Hrg. Ex. 32, Liebreich, May 24, 1999 Deposition p. 173)("money that Mr. Minton has given to be money for the benefit of the Estate of Lisa McPherson") and the testimony of Dandar's trial consultant, Dr. Garko. ("the money [was] to be ... put in trust, some trust account, and to be used to fund this case." (Ex. 13, Garko, Tr. August 29, 2002, pp. 33-35.) Yet these representations were made despite Dandar's claim before this Court that from the beginning his agreement with Minton was that there were never any "strings" on the money (Dandar's first story), despite even Dandar's alternative claim (his second story) that the "no strings" deal was made in 1998. The "no strings" story is crucial to Dandar's need to justify his conversion of client funds to his own use, addressed infra. Yet, having argued in various discovery disputes the existence of "strings" on the Minton money, Dandar then took the stand in these hearings and swore under oath that there were never any strings on the money, not since October, 1997, or at least since 1998, Dandar is now judicially estopped to assert "no strings" before this Court. The principle of judicial estoppel, borne of the need to bar attorneys from disgracing the legal system by playing fast and loose with the courts, clearly applies here. See Bernard Berman, P.A. v. P. Gary Stern, M.D. , P.A., 731 So.2d 148, 149-150 (Fla. 4th DCA 1999) (prevents a party from taking "a contrary position" to prevent parties "from playing 'fast and loose' with the courts, and to protect the essential integrity of the judicial process.") (citations omitted); Lambert v. Nationalwide Mut. Fire Ins. Co., 456 So.2d 517, 518-520 (Fla. 1st DCA 1984) (plaintiff who won settlements based on what he alleged in earlier wrongful death case "precluded himself from later taking an inconsistent position in order to seek further recovery...."). In the circumstances at bar, it is not only legally appropriate but eminently just and equitable to invoke judicial estoppel to bar Dandar from asserting his "no strings" tale before this Court. That is itself dispositive of the motion at bar. Specifically, if Dandar is barred by judicial estoppel from denying that the Minton money was provided for the Estate's exclusive use and benefit in the expenses for the wrongful death case, it then follows: 1.Dandar is guilty of converting the lion's share of the $2,050,000 which he used for his personal needs and indulgences; and 2.Dandar has commingled the Estate's funds with his own and with D & D's. Either of these requires disqualification. 6. Dandar's Misconduct During these Hearings A. Dandar's Perjury. There is hardly a word of Dandar's testimony in these hearings that does not exude premeditated and calculated perjury. From his feigned inability to answer questions unless and until the Church's counsel showed him a document or deposition excerpt (so that he could then fabricate a response), to his shifting stories, now totaling three in number, respecting the Minton money (see, supra), to his supposed inability to remember anything about what has to be the single most important financial day in his life (the day in 1998, that Minton allegedly agreed Dandar could use the money for his own indulgences), to his explanation for his letters to Minton thanking him for the donations to his client and the absence of any document memorializing the "it's mine, no strings" story, Dandar's testimony before this Court is an unbroken quilt of fabrications. What makes Dandar's conduct unique is not only that he is an attorney, but that he has displayed no compunction about looking this Court in the eye and telling a story so obviously contrived that no one could possibly believe it. Thus, Dandar repeatedly testified that the explanation of why the Minton loan was to him, not to his client, is that under his retainer agreement, he, Dandar, was bound to advance the costs, and then held to that story even after he was shown his retainer agreement that says otherwise. Dandar then demonstrated his utter contempt of the process of law by offering to this Court that he was referring to some other, unidentified – and unproduced-retainer agreement. Similarly, when Dandar told this Court that the two Swiss bank checks were not Minton's funds because Minton's name does not appear on them – and despite that there is no place on this form of bank check to insert anybody's name – Dandar told this Court, loud and clear, that he would say anything he thought would help him without regard to whether it was even plausible, let alone truthful. In the final analysis, however, it is for this Court to determine the extent of Dandar's perjury based not only upon the substance of his testimony and consideration of contrary evidence, but his demeanor as a witness. The Church respectfully submits that this Court should find perjury by Dandar. The Church is not unmindful of the fact that the stakes are high. When an attorney is found to have committed perjury, issues greater than disqualification are presented. But it is precisely because Dandar is an attorney that his perjurious testimony is so problematic. That perjury not only violates the criminal law, just as perjury by a non- attorney would, but perhaps even worse, violates Dandar's oath of office and his primary obligation as an officer of the court. The courts are obliged to decide matters, including such mundane ones as scheduling conflicts, based largely on the unsworn representations of counsel; the alternative of holding evidentiary hearings to resolve any disputed representations made by an attorney would concern any court. But when an attorney demonstrates his willingness to lie under oath, a fortiori, his unsworn representations are worthless. In sum, it is precisely because Dandar is an attorney that his conduct here, particularly on the witness stand, is so offensive. B. Enlisting Liebreich to Commit Perjury Whether we view it as an act of desperation, it is shocking that in the midst of these hearings, facing disqualification and perhaps even more serious consequences, Dandar would prevail upon his client to perjure herself. Specifically, on April 20, 2002, after these hearings had begun, Ms. Liebreich appeared for deposition. Despite her earlier, repeated testimony respecting the Minton money and the agreement, despite that on direct examination by Church counsel, Ms. Liebreich was at times consistent with her earlier testimony , Dandar then, on cross-examination of his client, elicited contradictory and knowingly false testimony. BY MR. DANDAR: Q. ...Is it your understanding that the money that Robert Minton gave to Dandar & Dandar, PA, or to Ken Dandar, your attorney, is a loan to Ken Dandar or the PA? A. Yes. Q. Did he give any money ever to the estate? A. No. (Pl. Hrg. Ex. 61, Liebreich, April 20, 2002 Deposition p. 463.) It is bad enough that a member of the bar would resort to perjury himself, but to importune his client to commit perjury to protect him and to thereby expose his own client to civil and criminal consequences, constitutes a complete abandonment of the attorney's duty to protect his client. C. Shifting and Inconsistent Stories Fact finders, whether they be jurors or judges, are attuned to witnesses who cannot tell the same story twice. Here, Dandar has told three different stories on a significant, $2,050,000 transaction. First, these proceedings began with Dandar asserting that, from the beginning "its my money, no strings." (Ex. 6, Tr., April 19, 2002, pp. 196-198.) Then, only after two days of being confronted with the overwhelming evidence against him, Dandar shifted gears, to his second story that "it's my money no strings" was not the initial deal, but became so in a 1998 conversation with Minton. (Ex. 7, Tr., April 30, 2002, pp. 196-199.) But Dandar is unable to remember a single thing about this financially significant event, not even approximately when in 1998 it occurred, not where, not anything. (Id., pp. 197- 199.) And despite Dandar's prior self-serving letters and confirmations of his dealings with Minton, (Pl. Hrg. Exs. 9, 11, 12, 73 ; Pl. Hrg. Ex. 82, counter-counterclaim), there is no witness and no document corroborating this 1998 course change. (Ex. 7, Tr., April 30, 2002, pp. 196-199.) Dandar's claimed inability to recall anything about this 1998 agreement with Minton is reminiscent of a well publicized lecture given decades ago by Chief Judge Edelstein of the Southern District of New York federal court as to when "I don't remember" can constitute perjury. One example Judge Edelstein used is a witness who responds, "I don't recall" to a question of whether he had ever climbed Mount Everest. Common sense teaches that a person would not forget such a momentous event so that the only explanation for an "I don't remember" response is deliberate perjury. Here, we have a financial Mount Everest, an agreement, according to Dandar, that brought over $2 million his way, far more than he had ever seen in his life, and when asked about the details of his ascendancy to the top of this financial mountain, all he could offer was "I don't recall." That is perjury – pure and simple. But it gets worse. On, July 26, 2002, Dandar filed a pleading in the wrongful death case, on behalf of Ms. Liebreich, entitled Answer and Defenses to Counterclaim and Counterclaim, alleging in the new counterclaim In October 1997, counsel for the ESTATE entered into a contractual relationship with Robert Minton, wherein Minton agreed to provide or obtain loan money to counsel for all funds necessary to complete litigation between the ESTATE and FLAG concerning the wrongful death of LISA MCPHERSON. The ESTATE is a third party beneficiary of this agreement in that counsel agreed to fund all litigation, including attorney fees and costs, on behalf of the ESTATE, and the agreement with Minton and counsel was intended to achieve that purpose for the benefit of the ESTATE. (Pl. Hrg Ex. 82, at p. 4, 4.) While this pleading does not address to whom the loan was made by Minton – whether to Dandar or the Estate – that is unimportant in view of the clear assertion of "strings" i.e., that the "contractual relationship," with Robert Minton required that he provide "all funds necessary to complete litigation between" the Estate and the Church for the wrongful death case, not for Minton to provide funds for Dandar's personal expenses and indulgences. With this new pleading, Dandar has therefore offered a third version of the arrangement with Minton, but has in the process come full circle to be simpatico with Minton's consistent, unwaivering testimony from the beginning as to the "strings" on the funds he provided. While that will surely be helpful to this Court in deciding that now non-issue, it is even more compelling on the subject of Dandar's dishonesty. Having told three different, totally inconsistent stories about his ascent to the top of the financial mountain, there is no testimony Dandar could offer (save for admissions) that would be worthy of belief. D. Evasions, Dissembling and Refusal to Produce Relevant Documents Here, as in our discussion of Dandar's perjury, supra, the Church could offer a tome respecting Dandar's evasiveness and dissembling that permeates the whole of Dandar's testimony. However, as this Court has heard and seen, Dandar's demeanor and these antics, we offer only a brief discussion of the more memorable instances. First, the Church served a Notice to Produce April 18, 2002, for Dandar and his firm to produce, "4. All bank records of Dandar & Dandar, P.A., Kennan Dandar and Thomas Dandar showing receipts and deposits of all payments any of them received from Robert Minton." (Pl. Hrg. Ex. 50.) Dandar filed a response (Pl. Hrg. Ex. 51) which, after the usual boilerplate objections states: "Defendant states there are none." When asked to explain this on the witness stand, Dandar offered, under oath: 1) His father had the records but he died, (Ex. 6, Tr., April 19, 2002, pp. 296-297); 2) His sister now has the bank records (Id., p. 297.) 3) Don't ask me, my brother prepared that response. (Id., p. 298, 299); Dandar finally did admit that he did, in fact, have his personal bank account records and those of D & D. (Id., pp. 298-299.) Yet to this day, not a single one of these documents has been produced. The Church also sought, via the same Notice to Produce, records of "payments" to Dandar and D & D by Minton. Not a single document was produced and when asked about this on the witness stand, Dandar offered that "payments are for wages. Payments are not loans or donations." And since he was not employed by Minton, no responsive documents exist. (Ex. 6, Tr., April 19, 2002, pp. 299-300.) Similar semantic gyration was in evidence by Dandar's dissembling in trying to explain the word "donation" in his letters to Minton, (Pl. Hrg. Exs. 9, 11, 12), and his efforts to "explain" his definition of how a loan becomes a "donation." (Ex. 6, Tr., April 19, 2002, pp. 298-300.) Equally as dissembling is Dandar's explanation of how he decided which account (his personal account or the D & D, general account) he would use to deposit Minton's checks. His explanation was that if Minton, by chance, made a check out to "Ken Dandar," as he did three times (Pl. Hrg. Exs. 5, 6, 15), Dandar deposited it into his personal account, but if Minton, serendipitously, made the check out to "Dandar and Dandar," Dandar deposited it into the D & D's general account. (Ex. 6, Tr., April 19, 2002, pp. 198-199). Dandar's repeated testimony, however, is that the Minton money was a personal loan to him, Kennan Dandar, and not to D & D. (Id., p. 241.) And since D & D is not a financial synonym for "Ken Dandar," it is little more that mere dissembling for Dandar to have testified that monies allegedly loaned to him personally were nevertheless deposited into the D & D account and, to boot that it was the serendepitous flick of Minton's pen that determined the depository. Finally, when confronted with his unequivocal written statements that it was the Estate who was the only one who had any obligation of repayment to Minton – a particularly damning statement – all Dandar could offer was that "the letter's not written correctly." (Id., pp. 211-212.) Dandar also made frivolous testimonial objections to stop damaging testimony from Dr. Garko during these hearings. On direct, Dandar elicited that on April 9, 2002, immediately after Minton's testimony recanting his perjured testimony, Mr. Lirot met with Dr. Garko and Dandar to give them a debrief of Minton's testimony. (Ex. 13, Tr. August 29, 2002, p. 43.) On cross, when asked what Mr. Lirot had revealed, Dandar asserted a work product "privilege" claim. (Id., p. 105-06.) However, it was then revealed that not only was an expert witness from a disrelated case present during the conversation, (id., at 106), but also Patricia Greenway was present – a friend of Dandar who is not a consultant, (id., at 111-12) and was therefore obviously not protected by any work product claim. The reason for this frivolous objection became manifest, when Dr. Garko testified that Mr. Lirot's debrief included that (1) Dandar had asked Minton to lie under oath during Minton's depositions in this case, (id., at 106), (2) that Dandar had concealed from Dr. Garko the two UBS checks for $500,000and $250,000, (id., at 106-07), and (3) concerning misappropriation of funds. (Id., at 107.) Yet Dandar denied none of these facts, (id., at 108-110), something an innocent person would certainly be expected to do. Dandar has paraded before this Court his unyielding dedication to evasiveness, to stonewalling and to the extraordinary word games he chooses to offer as a defense to his indefensible conduct. That display is unworthy of an attorney arguing a cause, unsworn. It is intolerable when offered by an attorney under oath and facing serious charges of misconduct. E. Deflection in Baseless Accusations of Misconduct Made by Dandar Perjury, suborning perjury, evasiveness, stonewalling document requests, and calculated dissembling do not exhaust Dandar's arsenal. To those he has added deflection and distraction in the form of meritless accusations of misconduct against the Church and its counsel. Following his usual practice of "you just say it" even if you have no proof, Dandar has offered as his "defense" here that in meetings held in March and April of this year, the Church and its counsel, particularly Messrs. Pope and Rosen, threatened, coerced and extorted Minton into bearing false testimony against Dandar. Those allegations are not merely irrelevant, but are unprofessional, offensive, irresponsible and obviously a desperate effort of one caught dead to rights to distract this Court's attention from the real issues. We will not dignify Dandar's conduct save to note that at the settlement meetings held in New York at the end of March (the meetings that Dandar asserts were marked by untoward conduct directed at Minton), there were six participants: Minton, Brooks, their attorney, a Church representative and two attorneys for the Church, Ms. Yingling and Mr. Rosen. Before Judge Schaeffer in the parallel disqualification hearing, Dandar advanced his same baseless accusations of misconduct. Having nothing to hide, all three attorneys there in attendance voluntarily waived their work product privilege and produced their notes of those meetings, but that was not enough to satisfy Dandar's ulterior motive. Thus, of the six people in attendance at those meetings, three testified before Judge Schaeffer – Minton, Brooks, and Ms. Yingling. All emphatically denied that there were any threats of coercion, any extortion. And given that Dandar had no witnesses to call who were at those meetings to refute those denials, one would have thought that any marginally responsible attorney would have desisted from this trumped up defense. But not Dandar, who apparently sees distraction as his last line of defense. Thus, at the August 13 scheduling conference with this Court, Dandar announced his intention to pursue the "defense," despite his lack of evidence, when he announced that Mr. Rosen would be Dandar's first witness when these hearings resumed. When Mr. Rosen testified on August 29, which testimony proved to be irrelevant to these proceedings. Even accepting arguendo, Dandar's baseless accusations that Minton was threatened in March and April of this year to bear false witness against Dandar, that would not explain the mountain of pre-March, 2000, evidence offered against Dandar, including: 1.Minton's checks with their notations; 2.Dandar's misappropriation of them; 3.Dandar's improper commingling; 4.Liebreich's and Dandar's own status and testimony discussed supra requesting the Minton money, the "strings" on it, the 1997 agreement respecting the disposition of the proceeds of the wrongful death case, etc., etc. As to these, Dandar will have to come up with better deflection than his accusations against the Church and its counsel. ARGUMENT Point 1. The Standards for Disqualification It is the most fundamental precept of American jurisprudence that conduct that is unethical or undermines the integrity of judicial proceedings strikes at the very heart of our legal system. Thus, while it is certainly not the province of the courts to discipline attorneys for breaches of the Rules of Professional Conduct, when presented with evidence of an attorney's unethical conduct in a pending case, it is the court's province and responsibility to protect the integrity of the legal system by disqualifying the offender. Simply put, the court decides whether an attorney ought be barred from further participation in the case before it, while the Bar decides whether that attorney ought be barred from participating in other cases. This distinction was clearly recognized by the Florida Supreme Court in Burns v. Huffstetler, 433 So.2d 964 (Fla. 1983). In Burns, on a consent decree, the trial court disqualified the attorney from further representation in the case and had the attorney surrender his Bar card to the court. The Supreme Court ruled that: ... the contempt power may be used as an alternative to formal disciplinary proceedings in "cases of lesser infractions." When the offense is serious enough to warrant a suspension or disbarment, however, either The Florida Bar grievance process or the judicial disciplinary process must be utilized in order to provide appropriate direct review in this Court and to comply with the procedure established for reinstatement. We conclude that the order of contempt requiring petitioner to surrender his license as an alternative to incarceration amounts to a suspension from the practice of law and that such a punishment may not be imposed as a sanction for contempt. Suspension and disbarment may, however, be sought for the identical conduct in the appropriate disciplinary proceedings authorized by this Court . . . . We find no basis in this record to vacate the order removing petitioner as counsel for the criminal defendant . . . . Id. at 965 (emphasis supplied.) While the Rules of Professional Conduct no longer contain a specific admonition "to avoid the appearance of impropriety," the standard in a disqualification motion still remains "the appearance of impropriety." State Farm Mutual Automobile Insurance Company v. K.A.W., 575 So.2d 630, 633-634 (Fla. 1991). In the present motion, plaintiff alleges not merely the appearance of impropriety, but actual impropriety. The Florida Supreme Court adopted from Rotante v. Lawrence Hospital, 46 A.D. 2d 199, 200, 361 N.Y.S.2d 372, 373 (1974), the proposition that disqualification is warranted in any situation that is "rife with the possibility of discredit to the bar and the administration of justice." State Farm v. K.A.W., supra, at 638. In Henriquez v. Temple, 668 So.2d 638 (Fla. 3rd DCA 1996), the appellate court refused to disturb a trial court order disqualifying a law firm which surreptitiously obtained documents that the trial court, after an in camera inspection, previously ordered were not to be produced. The Third District, citing Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 651 (M.D. Fla. 1992)Norton v. Tallahassee Memorial Hospital, 689 F.2d 938 (11th Cir. 1982) A. Theft of client's monies. The Florida Supreme Court has "repeatedly held that misuse of client funds held in trust is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate punishment." The Florida Bar v. Travis, 765 So.2d 689, 691 (Fla. 2000)(ordering disbarment where referee recommended 90-day suspension, even though attorney cooperated with the Bar, had no prior disciplinary record, presented substantial evidence of community contributions, and had an "otherwise exemplary record"); The Florida Bar v. Korones, 752 So.2d 586, 590, 591-592 (Fla. 2000)(ordering disbarment of attorney who, as personal representative of uncle's estate, misappropriated funds and filed a false accounting to cover up what he had done, even though referee recommended 90-day suspension and attorney had "remorse, financial and familial difficulties, health problems, good reputation," and made "restitution to the beneficiaries"); The Florida Bar v. Dancu, 490 So.2d 40, 41, 43 (Fla. 1986)(attorney disciplined when he placed insurance proceeds in money market account in own name and also kept the interest on that account). Theft of money is, of course, a crime under Florida law. If the amount stolen is over $100,000 or more, it is a felony of the first degree. Fla. Stat. § 812.014. If misappropriation of client funds results in virtually automatic disbarment and constitutes a felony under Florida law, a fortiori, an act of misappropriation creates an appearance or reasonable possibility of impropriety and certainly creates public suspicion that outweighs any possible countervailing reason why counsel would be kept on a case. See The Florida Bar v. Mason, 2002 WL 390009, *3 (Fla.) (The misuse of client funds is among those acts that do the greatest damage to the public trust.); The Florida Bar v. Graham, 605 So.2d 53, 55 (Fla. 1993)(referring to theft of client funds as "one of the most serious offenses a lawyer can commit."). Here, Dandar has taken funds that were given to him for the benefit of his client and has used them for his own purposes. When his actions were discovered, he gave contradictory and false testimony as to the nature of the funds and their intended purpose. His acts are improper, and subject to great public suspicion. No reason exists why he should be permitted to remain as counsel. B. Commingling of Funds Rule 4-1.15, Fla. R.Prof. Conduct requires that: A lawyer shall hold in trust, separate from the lawyer's own property, funds an property of clients or third persons that are in a lawyer's possession in connection with a representation. All funds, including advances for costs and expenses, shall be kept in a separate account maintained in the state where the lawyer's office is situated or elsewhere with the consent of the client or third person . . . As the Third District Court has held: . . . few breaches of ethics are as serious as the commingling of a client's funds and the use thereof for a lawyer's private purposes. The funds of a client in the custody of his lawyer should be guarded and protected as securely as if the same were in the custody of the community's strongest financial institution. The relationship between a lawyer and a client is of the highest degree of integrity and fidelity. In handling his client's money the lawyer should guard it with much greater diligence and caution than he does his own. Afrazeh v. Miami Elevator Co. of America, 769 So.2d 399, 403 (Fla. 3d DCA 2000), rev. denied sub nom., Smyler v. Afrezeh, 786 So.2d 580 (Fla. 2001), citing State ex rel. The Florida Bar v. Ruskin, 126 So.2d 142, 143 (Fla. 1961). There can be no doubt that an infraction of Bar rules as serious as an attorney's commingling of his client's funds with his own also creates extreme public suspicion, as well as an appearance or reasonable possibility of impropriety and therefore warrants disqualification. Here, Dandar has taken funds given to him by Minton in trust for Dandar's client and placed them in his firm's operating account, as well as his own personal accounts, and he has also taken money from his firm's operating accounts and transferred it into his client trust account to pay bills from that account so he could conceal that they were not in the trust account in the first place. Not only do his actions appear improper or have a reasonable possibility of impropriety, they are improper, and there is no countervailing reason to permit him to remain as counsel that outweighs the public suspicion created by his actions. C. Violations of Restrictions Imposed by The Florida Bar When Minton offered to provide Dandar with funding, Dandar contacted The Florida Bar for guidance as to the propriety of accepting funds from Minton. The Bar told Dandar that he must comply with the requirements of Rule 4-1.8(f)(2), providing, inter alia, that it is improper for an attorney to permit a third party who pays that attorney for representing a client to "interfer[e] with the lawyer's independence of professional judgment or with the client-lawyer relationship." See Aetna Ca. & Sur. Co. v. Protective Nat'l Ins. Co. of Omaha, 631 So.2d 305, 308 (Fla. 3d DCA 1994)(even though insurance company pays for representation of its insured, it is "precluded from interference with counsel's independent professional judgments in the conduct of the litigation on behalf of its client"). As shown above, Dandar permitted Minton to interfere significantly in this litigation by participating in meetings about decisions to add parties, by having Minton's paid retainers on Dandar's trial team oversee his actions and participate in shaping the direction of the wrongful death case and by agreeing to take particular actions desired by Minton to receive additional funding from Minton. Thus, Dandar's conduct here, is unethical, improper and warrants disqualification. D. Directing Minton Not to Produce Documents The Florida Rules of Professional Conduct specifically prohibit a lawyer from obstructing "another party's access to evidence or otherwise unlawfully" concealing "a document that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding." (Rule 4.3-4(a).) The rules also prohibit a lawyer from engaging in conduct prejudicial to the administration of justice (Rule 4-8.4(d)) or conduct involving dishonesty, fraud, deceit or misrepresentation. (Rule 4-8.4(c)). In addition, they require an attorney to "make reasonable efforts to expedite litigation" (Rule 4-3.2) and to be candid with a tribunal, whether through his own representations to the tribunal or through testimony or evidence by witnesses. (Rule 4-3.3.) In spite of these obligations, Dandar instructed Minton not to produce documents – the two Swiss bank checks showing payments to Dandar – even though they were requested of Minton in deposition subpoenas and even though Minton was ordered to produce responsive documents. (See, Orders dated June 5, 2001, and June 14, 2001.) Minton testified that the only reason he withheld these documents was that Dandar told him not to produce them or even reveal their existence. (Ex. 10, Minton, April 9, 2002, pp. 21- 22, and Ex. 6, April 19, pp. 112-113.) Not only do Dandar's instructions to Minton violate his obligations under the Rules of Professional Conduct, they also violate his discovery obligations under Rules 1.280, 1.350 and 1.380 of the Florida Rules of Civil Procedure. Rule 1.380 provides for sanctions against "counsel advising the conduct" that necessitates a motion to compel. In addition, withholding of evidence constitutes obstruction of justice. See Vega v. CSCS Int'l, N.V., 795 So.2d 164, 167 n. 2 (Fla. 3d DCA 2001); State ex rel. Meyerson v. Askew, 269 So.2d 671, 674-675 (Fla. 1972). The Supreme Court views a conviction for obstruction of justice as a serious offense against Bar rules. The Florida Bar v. Wolis, 783 So.2d 1057, 1060 (Fla. 2001). By instructing Minton not to produce documents, he has obstructed justice in this case and the wrongful death case. Because Dandar has committed such opprobrious acts, his disqualification is required. See Point I supra. E. Soliciting Minton to Commit Perjury Equally contrary to Florida law are Dandar's instructions to Minton not to testify concerning the Swiss bank checks paid to Dandar when he was asked about how much he had given to Dandar, to "backtrack" from his truthful testimony about an agreement concerning the proceeds of the litigation, and to deny that he had ever had meetings with Dandar concerning the conduct of the litigation and specifically the decision to add David Miscavige as a defendant, as well as his solicitation of Minton's signature on a false affidavit. He also had his client "backtrack" on her own prior testimony to protect Dandar's own falsehoods, misappropriations, commingling, and ethical violations from exposure. Minton admitted giving false testimony in this case and in the wrongful death case and doing so at the behest of Dandar. His false statements went to matters material to the particular proceedings in which they were made, such as discovery hearings or depositions, and also contradicted statements he made previously. Such falsehoods and false contradictions constitute perjury under Florida law. See Fla. Stat. §§ 837.011 (definitions), §837.02 (perjury in an official proceeding), §837.021 (perjury by contradictory statements). There is no question that Dandar solicited Minton's perjuries. Minton testified that the only reason he provided the false testimony on these various subjects was that Dandar told him to do so. (Ex. 10 (re Swiss check), Minton, April 9, pp. 21-22; Ex. 6, Tr. April 19, pp.112-113; Ex. 6, Minton, April 19, pp. 66-68, 72-76 (re secret agreement); Ex. 10, Minton, April 9, pp. 16-20 (re meeting to add David Miscavige as party to case.). Soliciting someone to commit perjury is a crime under Section 777.04(2) Florida Statutes. Jones v. State, 466 So.2d 293, 294-295 (Fla. 3d DCA), rev. denied 478 So.2d 53 (Fla. 1985). It would be a crime even if Minton and Liebreich had not actually committed the perjuries. The "crime of solicitation is completed when the actor with intent that another person commit a crime, has enticed, advised, incited, ordered or otherwise encouraged that person to commit a crime . . . ." Id., (citing State v. Gaines, 431 So.2d 736 (Fla. 4th DCA 1983); see Fla. Jury Instr., Criminal Solicitation (defendant solicited a person to commit a criminal act, and commanded, encouraged, hired, or requested the person to do so). Dandar, an attorney, obviously knew that telling someone to provide false testimony is a crime and, therefore, he clearly had the intent that Minton and Liebreich commit crimes when he advised, encouraged, and incited them to provide false testimony. His actions violated Section 777.04. F. Dandar's Misrepresentations to the Courts. Throughout the course of this case, the wrongful death case, the probate case, and the Texas breach case, Dandar has made repeated misrepresentations to the courts, not to mention personally providing false testimony in the form of oral testimony and an affidavit. There can be no dispute that his misrepresentations and false testimony were knowingly and willfully made in violation of the Rules of Professional Conduct, including Rules 4-3.3(4), 4-8.4(a)-(d), and other rules as set forth in Point 1. This is not minor, unintentional conduct; rather, it is deliberate flouting of the laws of this state and the rules under which an attorney is privileged to practice his profession. This conduct, therefore, warrants disqualification from this case. Point 3. Dandar's Misconduct During the Hearings Before this Court also Warrant Disqualification During the course of these hearings, Dandar has: (1) personally committed perjury; (2) suborned his client to commit perjury; (3) given shifting and utterly inconsistent stories about the facts at issue both as counsel and as witness; (4) been evasive concerning documents and refused to produce relevant documents; and (5) made baseless accusations directed at plaintiff and its attorneys to deflect attention from his own wrongdoing. This conduct is in derogation of the rules cited in Point 1 governing attorney conduct, all of which emphasize the requirement of honesty and underscore an attorney's duties as an officer of the court to assist in the search for truth and advance the judicial process. Such conduct before the Court cannot be tolerated, and Florida's courts do not tolerate it. For example, in The Florida Bar v. Agar, 394 So.2d 405 (Fla. 1980), an uncontested divorce proceeding, the attorney for the husband arranged for the wife to testify to the husband's residency. Just before the hearing, the attorney informed the wife that the practice of the presiding judge prohibited the wife from giving such testimony, and he suggested to her that she conceal her identity, testify under a false name, and state that she knew the husband because she had done bookkeeping for him, which she did, while testifying truthfully on the material fact of residency. The Supreme Court disbarred the attorney for this conduct because he "allowed his client to perpetrate a fraud upon the court and, according to the testimony of his client and the false witness, was the one who suggested the fraud in the first instance." Id. at 406; see The Florida Bar v. Lathe, 774 So.2d 675 (Fla. 2000) (Florida Supreme Court suspended an attorney who made false statements of fact concerning his alleged inability to attend a deposition); The Florida Bar v. Hmielewski, 702 So.2d 218, 220-21 (Fla. 1997) (suspending attorney for "deliberate misrepresentations of material fact" regarding existence of documents). Point 4. Dandar and D & D Must be Disqualified as Counsel for Liebreich here Because They are Now Party Defendants in this Action. Rule 4-3.7, Fla. R. Prof. Conduct provides that A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client except where: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; or (4) disqualification of the lawyer would work substantial hardship on the client. None of the exceptions apply here. Any testimony by Dandar will be hotly contested and substantial evidence will most certainly be offered in opposition. His testimony will go far beyond the subject of legal fees. And the disqualification of Dandar and D&D will not cause substantial hardship, as defendant now has another attorney, Luke Lirot, who can take over the representation. Dandar and his firm, therefore, should be disqualified now that they are parties in this matter and Dandar's testimony will be necessary. Point 5. The Church Should be Awarded its Costs and Counsel Fees Incurred in Discovery Here as a Result of Dandar's Misconduct. Dandar's conduct has geometrically multiplied plaintiff's discovery expenses and legal fees. For example, instead of deposing him for a single day, plaintiff had to depose Minton for multiple days because Dandar instructed him to lie. It is thus appropriate that plaintiff be awarded its incremental costs and counsel fees directly caused by Dandar's misconduct. The Florida Supreme Court recently resolved a conflict among the circuit courts and held that a trial court possesses the inherent authority to impose attorneys' fees against an attorney for bad faith misconduct. Moakley v. Smallwood, 2002 WL 276466, 27 Fla.L. Weekly S175 (Fla. Feb. 28, 2002); see also Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla. 1998) (recognizing inherent authority of a trial court to award attorneys' fees and costs for bad faith conduct against a party). Under Moakley, a court may assess attorneys' fees under its inherent powers, as long as it makes "an express finding of bad faith conduct . . . supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys' fees." Moakley, 2002 WL 276466 at *4; see Lathe v. Florida Select Citrus, Inc., 721 So.2d 1247 (Fla. 5th DCA 1998)( upholding imposition of attorneys' fees against an attorney who lied to the trial court after he failed to appear for a deposition); Patsy v. Patsy, 666 So.2d 1045, 1046-47 (Fla. 4th DCA 1996) (affirming trial court's inherent authority to award attorneys' fees and costs against attorney for a bad faith motion to disqualify counsel, filed without a factual basis and solely to delay the proceedings); David S. Nunes, P.A. v. Ferguson Enterprises, Inc., 703 So.2d 491 (Fla. 4th DCA 1997) (assessing attorneys' fees against counsel who did not attend a mediation and advised his clients that they also did not have to attend). The award of fees should include the costs and expenses incurred as a result of the misconduct, including those occurred during the hearing at which the serious misconduct is established, and is in addition to the remedy of disqualification. See Knox, 933 F.Supp. at 1586 (disqualifying counsel and awarding attorneys' fees as a result of counsel's discovery abuses, including fees incurred with respect to court's hearing on counsel's misconduct); see also Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1192, 1210 (11th Cir. 1985), 751 F.2d at 1210 (ordering disqualification and award of attorneys' fees). A court also "shall" award attorneys' fees, in specified circumstances, under Rule 1.380(b), Florida Rules of Civil Procedure, for disobeying a discovery order. Unlike the imposition of attorneys' fees under the court's inherent powers, fees award under Rule 1.380(d) do not require a finding of bad faith. Rather, the court "shall require the party . . . to pay the reasonable expenses caused . . . , which may include attorneys' fees" unless the party can show that the failure to obey the order was substantially "justified." As with an attorneys' fees award for bad faith conduct, the amount of the attorneys' fees award is determined by the expenses incurred as a result of the party's disobedience. See, e.g., Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505 (Fla. 4th DCA 2000); Interamerican Car Rental, Inc. v. Icaro, 559 So.2d 634 (Fla. 3d DCA 1990); Florida Dept. of Law Enforcement v. Ortega, 508 So.2d 493 (Fla. 3d DCA 1987). The explicit actions for which fees are sought and the appropriate amount of fees to be awarded can be calculated after the Court determines an entitlement. CONCLUSION For the foregoing reasons, Dandar and D & D must be disqualified and sanctioned for their misconduct. I HEREBY CERTIFY that a true copy hereof has been furnished by HAND DELIVERY to Thomas John Dandar, Esq. and Kennan G. Dandar, Esq., Dandar & Dandar, P.A., P.O. Box 24597, Tampa, FL 33623-4597; and by REGULAR U.S. MAIL to Bruce G. Howie, Esq., Piper, Ludin, Howie & Werner, P.A., 5720 Central Avenue, St. Petersburg, FL 33707; Thomas H. McGowan, Esq., McGowan & Suarez, L.L.P., 150 Second Avenue North, Suite 1500, St. Petersburg, FL 33701; and Luke Lirot, Esq., 112 East Street, Suite B, Tampa, FL 3360, this 30th day of August, 2002. JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL & BURNS, P.A. By: ___________________________ F. Wallace Pope, Jr. Post Office Box 1368 Clearwater, Florida 33757 Tel: (727) 461-1818 Fax: (727) 441-8617 Attorneys for Plaintiff SPN #00002797 (Ex. 1, Affidavit; Ex. 2, Hearing April 25, 2001, pp. 147-151.) Exhibits introduced and marked at the disqualification hearings are denominated Plaintiff's Hearing Exhibit or "Pl. Hrg. Ex. ___." Exhibits referenced to this memorandum which are not hearing exhibits, but are part of the record of this case, are merely denominated, "Ex." Ex. 3, Deposition and Hearing Transcript, January 10, 2001, p. 49. Ex. 4, Order dated January 10, 2002. E.g., Dandar's departure from the State for a legal education conference, leaving Thomas to cover Dandar's jury trial in St. Petersburg, with the result that neither Dandar nor Thomas appeared for the previously scheduled March 14, 2002 hearing before this Court. (Ex. 5, pp. 3-6.) E.g., Dandar's July 9, 2002, request to Judge Barton of the Hillsborough County Circuit Court to schedule the Nelson Trial to begin August 19, 2002 without disclosing that seven days earlier, hearings dates were fixed in this case for August 22, 29 and 30 and Dandar's subsequent Objections to Set Hearing Dates, citing his manufactured Nelson case conflict. (See, Plaintiff's Motion for Relief from Kennan Dandar's and Thomas Dandar's Contumacious Conduct, filed August 27, 2002.) It is axiomatic that a lawyer's paramount obligation is, as an Officer of the Court, to uphold and advance the judicial process, to assist in the search for truth, a process in which the lawyer owes the highest duty of candor to the courts. See, Argument, Point 3, infra. See, Argument, Point 3, infra. In addition, this Court's August 14, 2002 Order granting plaintiff leave to amend to plead against Dandar and D &D, requires their disqualification from the representation of Liebreich here. See, Argument, Point 4, infra. As discussed, infra, Dandar did modify that original story mid-hearing with a new version – that originally the transaction was as Minton has said, but in 1998, the agreement changed to Dandar's "it's my money, no strings" version. 10 Liebreich had no communications – oral or written - with Minton at all until December, 1998, (Pl. Hrg. Ex. 17, Liebreich Depo., May 24, 1999, pp. 162-164), so that her understanding of whose money it was and the strings on it was derived from what her own counsel told her. The transcript from the hearing of August 29, 2002 is available only in rough form, which is what is included as an exhibit hereto. A final version will be provided to this Court and may have different page numbers. 12 Ex. 7, Dandar, Tr. April 30, 2002, p. 177. Whether Dandar ever, in fact, sought Liebreich's approval is problematic given that apart from Liebreich's story, debuted in these hearings, there is no evidence to support Dandar's position. Indeed, even Dandar's thank you letters to Minton of 1997, 1999 and February 26, 2002 (Pl. Hrg. Exs. 9, 11 and 12) do not show copies to Liebreich. Dandar testified in deposition that the largest gross jury verdict he has ever won for any client is less than half of this amount. (Ex. 8, Dandar Depo., January 25, 2001, p. 50.). For example, if Dandar died, his wife, a lawyer herself, would have no way of defending an action by Minton to recover his loan, plus interest, and no way of proving what Dandar told this court were the terms of the loan. Dandar testified that he was told he actually met Minton in March of 1997, but he could not recall the incident. (Id.) It was only when this point was driven home to Dandar during his testimony before this Court that he created a different and wholly inconsistent story – i.e., that the Estate would only repay the portion of the Minton money that was actually used for expenses of the wrongful death case and that he, Dandar, would repay the remainder out of his contingent fee. (Ex. 7, Tr., April 30, 2002, pp. 187-192.) Rule 4-1.7 , Fla. Rules of Professional Conduct generally prohibits conflicts of interest, and 4-1.8(a) prohibits lawyers from entering into business transactions that are adverse to the interests of their clients. Minton's testimony that Dandar would hide the untraceable Swiss bank check proceeds is borne out by Dandar's own conduct. Thus, of the three Minton checks that Dandar deposited into his personal accounts, the one personal traceable Minton check (Pl. Hrg. Ex. 15) was deposited into Dandar's personal bank account in Florida, but the untraceable Swiss bank check (Pl. Hrg Exs. 5, 6, 58A, 59) was hidden in Dandar's Massachusetts personal mutual fund. 20 The court will note here Dandar's inherently inconsistent testimony that while the absence of Minton's name from the checks told Dandar that they were not from Minton, the congruent absence of the mysterious, benefactor's name from them was of no moment to Dandar. 21 Dandar told Minton he needed more money at Minton's New Hampshire home in February 2002 (Ex. 6, Tr. April 19, 2002 at p. 53) and then in his February 26, 2002, letter to Minton. The $250,000 bank check was issued on March 7, 2002, (Pl. Hrg. Ex. 6), barely a week after Minton received Dandar's letter. 22 Dandar's dissembling aside, Minton clearly and unequivocally testified that the two Swiss bank checks were his funds (Ex.10, Tr., April 9, 2002, pp. 6-7.) That testimony is entitled to the greatest weight because it is an admission by Minton that he maintained funds in a Swiss bank and brought them into the U.S., an admission which could expose him to certain potential liabilities under United States tax law. While Dandar's original story was that the Minton money was his, no strings, from the first dime of it in October, 1997, mid-hearing before this Court and right after being confronted with the deposition testimony Minton gave in January 1998 with Dandar present (Ex. 7, Tr., April 30, 2002, pp. 193-199), Dandar changed to a story that the Minton money was originally a loan to the Estate for its exclusive use and benefit but that sometime in 1998, his agreement with Minton changed to the "it's a personal loan to me, no strings" story. See discussion infra. See, Pl. Hrg. Ex. 82, at 4. At worst, and as the Church here charges, that transfer was not merely an improper commingling but was an act of theft. Respecting Dandar's second, mid-hearing story that his arrangement with Minton changed in 1998, Dandar was not able to provide a clue as to when this change supposedly occurred in that year. (Ex. 7, Tr., April 30, 2002, pp. 196-199.) And since it is Dandar's burden to prove that change, to prove that the February, 1998, funds were not (like the October, 1997, funds), the property of the Estate, Dandar's failure of proof as to the date of the supposed change requires this Court to find that the February, 1998, funds were, in fact, the property of the Estate and that Dandar nevertheless deposited them into a non-client-trust account. While Minton might have had a concern under the tax laws to not disclose that these payments came from his Swiss bank account, he certainly could have disclosed the amounts of the payments without identifying the depository, or, if necessary, invoking his Fifth Amendment privilege were that very question added, just as he had repeatedly done before Judge Schaeffer and this Court and as he quite properly could do if the disclosure bears on his potential tax liability. But for Dandar's instruction to commit perjury for Dandar's gain, when he was asked at deposition on May 24, 2001, how much money he had given Dandar, Minton could have included the $500,000 May, 2000, Swiss bank check when he instead omitted it and responded, The total amounted to $1,050,000. (Ex. 12, 10.) Q. Okay. Now, sir, you said a moment ago, and I want to make sure I got this right, there was never any agreement to contribute the monies to be recovered in the wrongful death case to a cult awareness group, right? A. Well, you show me where I said that, Mr. Rosen, because you know that's not true. Q. Well, sir, was there such an agreement? A. Among the family members there was. Q. Was there ever an agreement between Dell Liebreich on the one hand and her family and Mr. Minton on the other that a substantial, if not that – that all, if not a substantial amount, of the recovery from the wrongful death case was going to be contributed to an anticult group? A. No. Q. There was no such agreement? A. Let me tell you again, apparently you didn't hear me. There's been no agreement with Mr. Minton on disposition of funds outside of trying to pay him back. (Ex. 6, Tr., April 19, 2002, pp. 275-276.) At the hearings before this Court, Mr. Dandar was ultimately forced to agree that this was "truthful testimony." Q. Now, you sat in this courtroom today and heard as we went over the May 1999 deposition testimony of Dell, of Ann, her sister, and of Lee testifying to the fact that there was an agreement to donate the bulk of the proceeds. You heard that testimony, right? A. That's true testimony. * * * Q. At any time, did you correct any of those depositions and say, no, it's not true? A. No, because that was truthful testimony." (Ex. 7, Dandar, April 30, 2002 Testimony, pp. 143-144.) Q. Okay. Mr. Minton, after executing your affidavit, Exhibit 42, did there then come a time when you were deposed and specifically in October of the year 2001 by me in this case, in this breach case? A. Yes, sir. Q. And during the course of that deposition, were you asked a series of questions on this very subject, about whether there was or was not an agreement? A. Yes, I was. Q. And did you give answers to the effect that you have been mistaken in your radio statement and your Internet announcement? Did you backtrack and say there was no agreement? A. Yes. I backtracked. I misunderstood what Mr. Dandar had told me and ... Q. You gave a lot of excuses in terms of trying -- a lot of reasons and excuses to get away from the agreement that you had already made public, right? A. It was a pretty uncomfortable deposition, yes. Q. Okay. And you did that because of Mr. Dandar's request that you had to backtrack because it was hurting the case? A. That's correct and because I had signed this affidavit that he wanted me to sign and I had to backtrack at that point." (Ex. 6, Tr., April 19, 2002 Minton Testimony, pp. 80-81.) Dandar denied that he drafted the Minton affidavit but that is hardly significant. Far more important is the undisputed fact that it came into Dandar's hands and that he submitted it to the court knowing it was false. Scarano v. Central R. Co. of New Jersey, 203 F.2d 510 (3rd Cir. 1953). See, Scarano, supra. In addition, as discussed, supra, if the Minton money belongs to the Estate, Dandar also took the earnings/interest and may have violated a Florida Bar rule by keeping it. Fla. R. Prof. Cond. 5-1.1(e). Dandar's inconsistent representations also independently violates the rule regarding attorney candor toward the Court. Rule 4-3.3 . A. I deny it unless you can show me something to the contrary. I can't sit here and say, oh, yeah, I remember this. I can't do it. Q. Mr. Dandar, your answer is, if I can prove to you that you're not telling the truth, then you'll admit it? (Ex. 7, Tr., April 30, 2002, p. 140.) (Pl. Hrg. Ex. 17, Liebreich Depo., May 24, 1999, pp. 162-63; Pl. Hrg. Ex. 32, p. 173; Pl. Hrg Ex. 61, Liebreich Depo., April 20, 2002, pp. 311, 343-44, 345, 347-48, 469-70.) Q. I've marked as Exhibit 12 a letter from Mr. Dandar that you produced in discovery. Do you see in the second paragraph that Mr. Dandar says you've consented to Mr. Minton providing money for the estate? A. I did. I said I thought it was great. Q. So Mr. Dandar asked you if you consent to the money coming to the estate? A. That's right. Yes. Q. And you said that was great? A. Right. I said I can't believe somebody is doing that but I think it's wonderful. Q. All right. How many times did you consent to Mr. Minton providing money for the estate? A. Any time he wanted to. I don't know how many times, any time he wanted to." (Pl. Hrg. Ex. 61, Liebreich, April 20, 2002 Deposition pp. 343-344.) An attorney who elicits testimony from a witness known to be false violates Rule 4- 3.3(4), Fla.R. Prof. Conduct as surely as when he himself offers false testimony. And this itself is grounds for disqualification. See Knox v. Hayes, 933 F.Supp. 1573, 1585-86 (S.D.Ga. 1995), aff'd, 108 F.3d 343 (11th Cir. 1997)(disqualifying attorney for submitting false affidavit and obstructing discovery); see also Burns v. Huffstetler, 433 So.2d 964, 964-965, 966 (Fla. 1983)("We find no basis in this record to vacate the order removing petitioner as counsel for the criminal defendant," in part for attempting "to impede trial by requesting continuances upon false grounds....") In fact, Webster's New College Dictionary, 1999, offers as the definition of "payment" as "1. The act of paying or state of being paid. 2. The amount paid. 3. One's due, award, or punishment: requital." Thomas is a partner in the D & D firm (Ex. 6, Tr. April 19, p. 241.). The Church believes that this statement is absolutely accurate in that Minton's money was intended to be used exclusively for the Estate's expenses in the wrongful death case. Thus, it follows that only the Estate would have any obligation of repayment. However, were we to believe Dandar's "it's my money, no strings" tale, then this statement takes on a far more sinister character, for despite what Dandar may testify to here, it certainly appears that particularly given Liebreich's total ignorance respecting the whereabouts and use of the Minton funds, if there ever were a recovery in the wrongful death case, Dandar's intention is to stick the Estate with repaying the Minton money he had misappropriated. See the Church's Bench Memorandum handed up on August 29. Although the Rules of Professional Conduct no longer contain a rule as to the appearance of impropriety, aspirational goal 1.1 of the "Ideals and Goals of Professionalism" adopted by The Florida Bar Board of Governors admonishes that "[a] lawyer should at all times avoid the appearance of impropriety." See also, Matter of Beiny, 522 N.Y.S.2d 511, 523 (N.Y. 1987): In framing the disqualification issue as they have, as one turning exclusively upon the relative prejudice which would be visited on the parties were we to rule one way or the other, petitioner's counsel overlook what should have been obvious from our decision--that it is not only the interests of the parties which are implicated in this case, but the considerable interest of the courts and the public in maintaining the integrity of the judicial process and the attorney-client relation. Intentional misconduct of the sort committed by petitioner's counsel vitiates and demeans the process and, as this motion demonstrates so vividly, results in substantial additional burdens being placed on both the courts and litigants. This principle has been codified in the section on Disbarment in the Rules of Discipline: Disbarment is the presumed sanction for lawyers found guilty of theft from a lawyer's trust account or special trust funds received or disbursed by a lawyer as guardian, personal representative, receiver, or in a similar capacity such as trustee under a specific trust document. Rule of Discipline 3-5.1(g); The Florida Bar v. Mason, . Theft is the only act for which such a presumption was written into the disbarment rule. In any situation where ownership of trust funds is disputed, those funds must remain in trust until the dispute is resolved. Rule 4-1.15(c), Fla. R. Prof. Conduct. This conduct also violates various Rules of Professional Conduct as addressed above in Point 1 and Point D. See The Florida Bar v. Forrester, 818 So.2d 477, 481-482 (Fla. 2002)(attorney suspended who had hidden a document during the course of a deposition in violation of Bar rule prohibiting concealing of relevant evidence). Materiality for purposes of perjury has historically been defined as "material to the point in question" or "the issue" to which it goes. Miller v. State, 15 Fla. 577, 1876 WL 2509, *3 (Fla. 1876).
To Life and Death of Lisa McPherson