Roniel Rodriguez, Benjamin Raul Alvarez, James Miller & Stuart kalb Reviews
Jul 21, 2015
Florida Bar
Its no wonder why haven"t the florida Bar taken action against Mr Roniel R Rodriguez Iv snd his consortium of dishonest indivduals holding Bar Licenses..i real real reality...the problem isn"t Ron Rodrigeuz or james miller or Alverez its the Florida Bar whobhas beem out to lunch for several years...and there needs to be real constructive change in the way the Attorneys Bar handle citizens complaints...currently in my humble opinion the Florida Bar is a broken arrow..and safe guard the most crooket corrupt attornrys ever to operate out of miami..do the florida bar staff like me...who give a dsm what the florida bar like...what they need to do is there job...and stop imbarassing the florida supreme court...when i become a florida attorney a ..God be my strength i will sue the florida bar for change...perhaps the best would beif florida supreme court transfer all bar coplaints to florida department of professional regulations and watch how any attorneys close shop...
WALTER L. LISTA (“Complainant”) hereby files this complaint against Jorge Carbonell (“Carbonell”); Benjamin R. Alvarez (“Alvarez”), the law firm of Alvarez, Carbonell, Feltman & Da Silva, P.L. (“A/C”); and Roniel J. Rodriguez IV (“Rodriguez”), in violation of rules 41.3, 41.4, 41.7, 43.3, 44.1, 51.1, of the Rules Regulating the Florida Bar.
Carbonell, Alvarez, and A/C (collectively the “Firm”) intentionally defrauded Citizens Property Insurance Corporation (“Carrier”) by fabricating the supporting documentation relied upon during the course of litigation between the Firm’s client, Inglewood Townhomes Condominium Association (“Inglewood”) and Carrier. The Firm acted with the express purpose of artificially inflating Inglewood’s damages, and, consequently, the Firm’s contingency fee. In order to unjustly enrich themselves further and perpetuate the scheme to defraud, the Firm then converted Inglewood’s funds from the Firm’s trust account by utilizing straws to create the appearance of legitimate litigation costs. Complainant was unwittingly used as a straw by the Firm and Rodriguez in this complex scheme to defraud Carrier, Inglewood, and the courts.
After defrauding Carrier and converting Inglewood’s funds, the Firm and Rodriguez conspired to devise an additional scheme and artifice to plunder approximately $55,000.00 from Inglewood’s cash reserves. As part of this scheme, the Firm intentionally caused Inglewood to default on an agreement with Rodriguez’s straw clients, thereby entitling Rodriguez to a default judgment (the “Judgment”) against Inglewood. The Judgment formed the basis of Rodriguez’s writ of garnishment directed against Inglewood’s bank.
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II. FACTUAL BACKGROUND
A. The Citizens Litigation
In or about October 2009, Inglewood entered into an agreement for legal representation with the Firm. Inglewood and the Firm dispute the scope of Firm’s representation; however, what is not in dispute is that the Firm was retained for the purpose of representing Inglewood in its claim against Carrier for property damage sustained during the 2005 hurricanes. The above referenced case is styled, Inglewood Townhomes Condominium
Association v. Citizens Property Insurance Corporation, Case Number: 201003265CA03 (the “Citizens” litigation).
During the Citizens litigation, the Firm purportedly hired certain thirdparty professionals to assess the extent of Inglewood’s damages. In reality, these three professionals were straws the Firm used to inflate the cost of litigation (collectively the “Straws”). The Straws were: Walter L. Lista, Inc. (“Lista Inc.”)1; Expert Claims Adjusters, Inc. (“Straw 2”); and VEP Construction, Inc. (“Straw 3”). In total, the Firm submitted approximately $128,070.00 in professional fees to Carrier during the the Citizens litigation (the “Straw Costs”). The Straw Costs consisted of: the Lista Inc. fee of $16,000.00; the Straw 2 fee of $91,870.00; the Straw
3 fee of $8,200.00; and mediation fees of $12,000.00.
To shield the fraud from detection by outside parties, the Firm fabricated the Lista Inc. invoice (the “Invoice”), forged Complainant’s signature, and represented to Carrier that the Invoice was a legitimate litigation cost. The Invoice is attached hereto as Exhibit 1. The Firm used the Invoice to defraud Carrier out of $16,000.00. Neither Lista Inc. or Complainant ever
1 Complainant holds a Florida professional engineering license, and renders professional services as an agent of Lista Inc.
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performed any services on behalf of the Firm or Inglewood, nor did Complainant have any knowledge that the Firm used Lista Inc. as a straw in the Firm’s scheme to defraud Carrier. Carrier relied on the Straw Costs as the basis of Inglewood’s damages and settled the Citizens matter for approximately $400,000.00.2
Inglewood objected to the amount of the Straw Costs and attempted to negotiate a reduction with the Firm. During the negotiations, the Firm purportedly advised Inglewood through a series of emails that the Straws would “initiate immediate legal action against Inglewood.” In a second email dated April 6, 2011, Alvarez wrote to Inglewood:
[b]ased on me [sic] conversations with the G.C., engineer and appraiser, I am hereby advising you that they are going to initiate legal action against you to collect their fees; and I STRONGLY URGE Inglewood to avoid further acrimony and litigation, by paying them for their work.” [emphasis original]
The emails are attached hereto as Exhibit 2. In the April 6 email, Alvarez used the sobriquet “engineer” in reference to Complainant. No such conversations ever occurred between the Firm and Complainant. On April 21, 2011, Straw 2, represented by Rodriguez, initiated an action against Inglewood for nonpayment in a case styled, Expert Claims Adjusters, Inc. v.
Inglewood Townhomes Condo Ass’n, Inc., Case Number 201112415CA03 (the “Expert Claims” litigation). The Expert Claims litigation is discussed in detail in Section B.
After Rodriguez commenced the Expert Claims litigation, A/C negotiated a settlement agreement on behalf of Inglewood (the “Settlement”). Alvarez signed the Settlement as assignee of Lista Inc. and Straw 3 despite the fact that Rodriguez claimed to represent Lista Inc. and
2 To settle the Citizens litigation, Carrier paid the Firm approximately $80,000.00 in legal fees. An accounting of the Firm’s fee was never provided to Inglewood, and, as discussed in Section C, forms the basis for Inglewood’s malpractice action against the Firm.
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Straw 3 in the the Expert Claims litigation.3 Pursuant to the Settlement, A/C received $1,591.00, Lista Inc. received a reduced fee of $12,000.00, Straw 2 received a reduced fee of $45,000.00, Rodriguez received $5,000.00 in legal fees, and Straw 3 received a reduced fee of $6,200.00. Under the Settlement, A/C was required to pay Rodriguez and Straw 2 prior to May 12, 2011. Failure to satisfy this condition entitled Straw 2 to a default judgment for the full amount of its preSettlement fee of $91,870.00.4 Ultimately, the Firm caused Inglewood to default under the Settlement by intentionally failing to timely pay Straw 2 and Rodriguez (the “Default”). The Default is discussed in greater detail in Section B.
To perpetuate the Citizens fraud and convert approximately $18,200.00 of Inglewood’s settlement proceeds, the Firm issued two checks to Lista Inc. and Straw 3. On or about May 3, 2011, A/C issued Check 3315, drawn on its Operating Account in the amount of $6,200.00, naming Straw 3 as payee. Alvarez signed that instrument as its maker. On or about May 6, 2011, A/C drafted Check 3327, drawn on its Operating Account in the amount of $12,000.00, naming Lista Inc. as payee. A copy of Check 3327 is attached hereto as Exhibit 3. Carbonell signed that instrument as its maker. At this point, neither Lista Inc. or Complainant had any knowledge of check 3327, the Settlement, or the Expert Claims litigation. Further, neither Lista Inc. or Complainant received any disbursements from A/C because any payments to an outside party would have exposed the fraud. Upon information and belief, the Firm cashed checks 3315 and 3327 and deposited the money back into its own Operating Account. As
3 Inglewood’s default under the Settlement forms the basis for the default judgment in the Expert Claims litigation discussed in section B.
4 Straw 2’s preSettlement fee was $91,870; however, as is discussed in greater detail in Section B, Rodriguez obtained a final judgment in the amount of $128,070.00, plus interest, in violation of rule 43.3, Rules Regulating the Florida Bar.
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further discussed immediately below, the Firm converted Inglewood’s funds by paying itself from the Firm’s IOTA account, disguising the payment as reimbursement of litigation costs.
On or about June 6, 2011, A/C drafted check number 1060, drawn on its IOTA account in the amount of $19,791.00, naming A/C as payee. A copy of the check is attached hereto as Exhibit 4. Upon information and belief, A/C deposited IOTA check 1060 into its Operating Account.5
B. The Expert Claims Litigation
As discussed above, Inglewood’s objection to the Straw Costs in the Citizens litigation prompted Rodriguez and Straw 2 to file the Expert Claims matter against Inglewood for nonpayment. At all relevant times, Straw 2 was represented by Rodriguez. After Rodriguez initiated the litigation, the parties entered into settlement negotiations. As stated above, A/C negotiated the Settlement on behalf of Inglewood. Under the Settlement, Straw 2 received a reduced fee in the amount of $45,000.00 for services allegedly rendered in connection with the
Citizens litigation (the “Straw 2 postSettlement fee”).6 Additionally, Rodriguez received $5,000.00 in legal fees under the Settlement. Pursuant to the Settlement, A/C was required to remit payment to both Straw 2 and Rodriguez prior to May 12, 2011. Under the Settlement, nonperformance of this condition entitled Straw 2 to a default judgment against Inglewood for Straw 2’s preSettlement fee of $91,870.00. A/C was at all times cognizant of this condition, as evidenced by the fact that it a) negotiated the Settlement on behalf of the parties; b) memorialized the terms of the Settlement for the parties; c) referenced the May 12 deadline and
5 IOTA check 1060 represents the postSettlement Lista Inc. and Straw 3 fee, totaling $18,200.00, plus A/C’s additional legal fees of $1,591.00.
6 Adjusters original invoice directed to A/C was in the amount of $91,870.00.
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the fact that time was of the essence in at least two different emails; and d) partially performed its obligations under the Settlement.
As previously stated, Straw 2’s preSettlement fee consisted of approximately $91,870.00 out of the total $128,070.00 in Straw Costs. The remaining balance of $36,200.00 was comprised of a) the Lista Inc. preSettlement fee of $16,000.00; b) the Straw 3 preSettlement fee of $8,200.00; and c) $12,000.00 which represented Inglewood’s share of mediation fees. It should also be noted that, as of April 29, 2014, Straw 2’s registered agent was ACG Registered Agents, LLC (“ACG”). At all relevant times, Carbonell and Alvarez were the managing members of ACG. It should also be noted that, at all relevant times, Alvarez and Rodriguez were partners in numerous business ventures.7 The Florida Division of Corporations documentation is attached hereto as Exhibit 5.
A/C performed some of its obligations under the Settlement by “paying” Lista Inc. and Straw 3, but the Firm ultimately caused Inglewood to default on the Settlement by intentionally failing to pay Straw 2 and Rodriguez before the May 12 deadline. On May 17, 2011, Rodriguez filed for a Clerk’s default against Inglewood due to Inglewood’s failure to file a responsive pleading in the Expert litigation. On May 26, 2011, Rodriguez obtained a final judgment in the amount of $142,420.72 plus fees, costs, and interest (the “Judgment”). Curiously, the Judgment included the preSettlement Lista Inc. fee of $16,000.00,8 the preSettlement Straw 3 fee of $8,200.00, and the $12,000.00 mediation fee. The remaining balance of $14,350.72 consisted of miscellaneous fees and interest. A copy of the Judgment is
7 Alvarez and Rodriguez are currently associated in Realegal Holdings, LLC, a Florida registered LLC, among other entities. ACG Registered Agents, LLC is the agent of record for Realegal Holdings, LLC.
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attached hereto as Exhibit 6.
As previously discussed, A/C issued Checks 3315 and 3327 to Straw 3 and Lista Inc., respectively. Since the Lista Inc. and Straw 3 debts had been previously satisfied by A/C under the Settlement, Rodriguez should have amended the Expert Claims complaint to exclude these amounts from the Judgment. Instead, Rodriguez intentionally omitted material facts from the court, thereby obtaining a judgment in excess of the amount to which his client was entlted. Moreover, Rodriguez claimed to represent the interests of Lista Inc. in the Expert Claims complaint. Shockingly, no attorneyclient relationship ever existed between Rodriguez and Lista Inc. or between Rodriguez and the Complainant in relation to either the Citizens or Expert Claims matters, yet Rodriguez knowingly misrepresented this fact to the court, as well.
On June 1, 2011, Rodriguez filed Straw 2’s motion for a writ of garnishment in the amount of $142,420.72. The writ was directed at, and served on, A/C (the “A/C Writ”). On the same June 1 date, A/C a) answered the writ and acknowledged that it was indebted to Inglewood in the amount of $45,000.00, and that it was holding that amount in trust for Inglewood; and b) issued IOTA check 1054, in the amount of $5,000.00, to Rodriguez. On June 6, 2011, A/C issued IOTA check number 1058, in the amount of $45,000.00, to Straw 2’s agent, Eduardo Rodriguez. Carbonell signed both instruments as the maker. On June 8, 2011, Rodriguez filed a satisfaction of final judgment in garnishment against A/C.
On June 21, 2011, Straw 2 assigned the remainder of the Judgment to RJR Charitable Holdings, LLC (hereinafter “RJR Charitable”). RJR Charitable is wholly controlled by Rodriguez. On February 1, 2012, RJR Charitable filed a motion for writ of garnishment against a bank holding money on deposit for Inglewood (the “JP Morgan Writ”). At the hearing on
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Inglewood’s motion to dissolve the JP Morgan Writ, Alvarez submitted an affidavit from Carbonell wherein Carbonell falsely stated in his sworn affidavit that the Firm did not represent Inglewood in the Expert Claims litigation. The assignment, writs, satisfactions, and affidavit are attached hereto as Exhibit 7. On April 9, 2012, the court entered an Agreed Final Judgment in Garnishment, ordering JP Morgan to pay RJR Charitable the sum of $55,000.00.
In conclusion, the Firm and Rodriguez conspired to convert an additional $55,000.00 from Inglewood by intentionally causing Inglewood to default under the Settlement. As a result, Rodriguez was able to obtain the Judgment and garnish Inglewood’s bank accounts.
C. The Malpractice Action
On May 17, 2013, Inglewood filed a threecount suit against the Firm wherein Inglewood alleges that the Firm committed malpractice by, among other things, damaging Inglewood as a result of the Firm’s failure to disclose its relationship with Rodriguez. That case is styled, Inglewood Townhomes Condominium Association, Inc. v. Benjamin R. Alvarez,
Esq., Jorge L. Carnonell, Esq., Alvarez, Carbonell & Gomez, P.L., Alvarez, Carbonell, Feltman, Jimenez & Gomez, LLC, and Alvarez, Carbonell, Feltman, Jimenez & Gomez, P.L., Case Number: 201317764CA01 (the “Malpractice” litigation).
III. ARGUMENT
A. Violation of the Rules Regulating the Florida Bar
1. Rule 34.3 Misconduct and Minor Misconduct
Complainant alleges that the Firm and Rodriguez (collectively the “Lawyers”) violated Rule 34.3 of the Rules Regulating the Florida Bar. Rule 34.3 provides in pertinent part:
The commission by a lawyer of any act that is unlawful or contrary to honesty
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and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.
Lawyers violated rule 34.3 by: i) fabricating supporting documentation in the Citizens litigation, specifically, the Invoice directed at A/C; ii) executing the Settlement as assignee of Lista Inc.; iii) drafting a negotiable instrument naming Lista Inc. as payee with the knowledge and specific intent to perpetuate the fraud against Carrier and Inglewood;9 iv) endorsing the abovementioned instrument by fraudulently claiming and exercising an assignment of a right which was not granted; v) converting Inglewood’s proceeds from the Citizens litigation by utilizing straws; vi) intentionally causing Inglewood to default on the Settlement; and vii) conspiring to convert Inglewood’s cash reserves as a result of the abovementioned default.
As a product of their expertise in the area of firstparty insurance litigation, Lawyers possess asymmetrical information over the lay population in general, and Inglewood specifically. Lawyers used their position and asymmetrical information to the detriment of Inglewood by manipulating the intricacies of the legal system. Lawyers conduct is highly prejudicial to the administration of justice, and so egregious that it may constitute a violation of state and federal criminal statutes.
2. Rule 41.3 Diligence
Complainant alleges that the Firm violated rule 41.3, Rules Regulating the Florida Bar. Rule 41.3 provides, “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The Comment to the rule further provides that:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer and take whatever lawful
9 Check number 3327 drawn on the A/C Operating Account.
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and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.
The Firm violated rule 41.3 by failing to act diligently in the representation of Inglewood.
Specifically, the Firm failed to act diligently by intentionally failing to satisfy the terms of the
Settlement, thereby causing Inglewood to default under the Settlement and suffer default
judgment. As a result of the Judgment, Rodriguez garnished approximately $55,000.00 of
Inglewood’s cash reserves.
3. Rule 41.4 Communication
Complainant alleges that the Firm violated rule 41.4, Rules Regulating the Florida Bar.
Rule 41.4 provides:
(a) Informing Client of Status of Representation. A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the
representation.
The Firm violated rule 41.4 by failing to inform Inglewood of the status of its representation of
Inglewood throughout the Citizens and Expert Claims litigation, and the Expert Claims
settlement negotiations. The Firm did not properly inform Inglewood of its relationship with
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Rodriguez such that Inglewood could give informed consent to the Firm’s continued representation. Further, the Firm violated subsection (b) of the rule by failing to fully and adequately explain to Inglewood the consequences of a default on the Expert Claims
Settlement.
4. Rule 43.3 Candor Toward the Tribunal
Complainant alleges that the Lawyers violated rule 43.3, Rules Regulating the Florida Bar. Rule 43.3 provides:
(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid
assisting a criminal or fraudulent act by the client...
(4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
Rodriguez violated rule 43.3 by failing to amend the complaint in the Expert Claims litigation to reflect the satisfaction of the Lista Inc. and Straw 3 debts. The Firm violated rule 43.3 by knowingly presenting a falsified affidavit in connection with the Expert Claims litigation. Further, Lawyers violated the rule by utilizing straws to procure a judgment against Inglewood, and failing to disclose this fact to the court.
5. Rule 48.4 Misconduct
Complainant alleges that Lawyers violated rule 48.4, Rules Regulating the Florida Bar. Rule 48.4 provides:
A lawyer shall not:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly
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assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…[or]
(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice.
The Lawyers violate rule 48.4 by utilizing straws to convert Inglewood’s litigation
proceeds, and by conspiring to convert $55,000.00 of Inglewood’s cash reserves. Lawyers’
conduct is prejudicial to the administration of justice.
6. Rule 51.1 Trust Accounts
Complainant alleges that Carbonell and Alvarez violated rule 51.1, Rules Regulating
the Florida Bar. Subsection (b) of the rule provides:
Application of Trust Funds or Property to Specific Purpose.
Money or other property entrusted to an attorney for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must be applied only to that purpose. Money and other property of clients coming into the hands of an attorney are not subject to counterclaim or setoff for attorney’s fees, and a refusal to account for and deliver over such property upon demand shall be deemed a conversion. [emphasis original]
51.1(e) provides:
Notice of Receipt of Trust Funds; Delivery; Accounting.
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. [emphasis original]
Carbonell and Alvarez violated rule 51.1 by a) holding the proceeds of the Citizens litigation in
trust for Inglewood; b) intentionally failing to apply those funds to the specific purpose for which
the money was intended, namely, timely distributing the funds to Inglewood’s creditors as
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required under the Settlement; and c) converting said funds for the Firm’s personal use. Additionally, after it negotiated the Settlement on behalf of Inglewood, the Firm was
obligated under rule 51.1 to promptly notify the thirdparty creditors and distribute Inglewood’s funds by May 12, 2011. The Firm did not distribute the funds due Straw 2 and Rodriguez until June 1, 2011 when it filed a response to Rodriguez’s motion for writ of garnishment. On June 6, 2011, the Firm made the final distribution of funds under the Settlement. The Firm’s violation of the rule ultimately caused Inglewood to default under the Settlement and permitted Rodriguez to garnish Inglewood’s cash reserves.
IV. CONCLUSION
Complainant respectfully requests that the Florida Bar investigate Benjamin R. Alvarez, Jorge L. Carbonell, and Roniel J. Rodriguez for violations of the Rules Regulating the Florida Bar, and fashion sanctions the Bar deems appropriate.
Roniel Rodriguez, Benjamin Raul Alvarez, James Miller & Stuart kalb Reviews
Florida Bar
Its no wonder why haven"t the florida Bar taken action against Mr Roniel R Rodriguez Iv snd his consortium of dishonest indivduals holding Bar Licenses..i real real reality...the problem isn"t Ron Rodrigeuz or james miller or Alverez its the Florida Bar whobhas beem out to lunch for several years...and there needs to be real constructive change in the way the Attorneys Bar handle citizens complaints...currently in my humble opinion the Florida Bar is a broken arrow..and safe guard the most crooket corrupt attornrys ever to operate out of miami..do the florida bar staff like me...who give a dsm what the florida bar like...what they need to do is there job...and stop imbarassing the florida supreme court...when i become a florida attorney a ..God be my strength i will sue the florida bar for change...perhaps the best would beif florida supreme court transfer all bar coplaints to florida department of professional regulations and watch how any attorneys close shop...
I. INTRODUCTION
WALTER L. LISTA (“Complainant”) hereby files this complaint against Jorge Carbonell (“Carbonell”); Benjamin R. Alvarez (“Alvarez”), the law firm of Alvarez, Carbonell, Feltman & Da Silva, P.L. (“A/C”); and Roniel J. Rodriguez IV (“Rodriguez”), in violation of rules 41.3, 41.4, 41.7, 43.3, 44.1, 51.1, of the Rules Regulating the Florida Bar.
Carbonell, Alvarez, and A/C (collectively the “Firm”) intentionally defrauded Citizens Property Insurance Corporation (“Carrier”) by fabricating the supporting documentation relied upon during the course of litigation between the Firm’s client, Inglewood Townhomes Condominium Association (“Inglewood”) and Carrier. The Firm acted with the express purpose of artificially inflating Inglewood’s damages, and, consequently, the Firm’s contingency fee. In order to unjustly enrich themselves further and perpetuate the scheme to defraud, the Firm then converted Inglewood’s funds from the Firm’s trust account by utilizing straws to create the appearance of legitimate litigation costs. Complainant was unwittingly used as a straw by the Firm and Rodriguez in this complex scheme to defraud Carrier, Inglewood, and the courts.
After defrauding Carrier and converting Inglewood’s funds, the Firm and Rodriguez conspired to devise an additional scheme and artifice to plunder approximately $55,000.00 from Inglewood’s cash reserves. As part of this scheme, the Firm intentionally caused Inglewood to default on an agreement with Rodriguez’s straw clients, thereby entitling Rodriguez to a default judgment (the “Judgment”) against Inglewood. The Judgment formed the basis of Rodriguez’s writ of garnishment directed against Inglewood’s bank.
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II. FACTUAL BACKGROUND
A. The Citizens Litigation
In or about October 2009, Inglewood entered into an agreement for legal representation with the Firm. Inglewood and the Firm dispute the scope of Firm’s representation; however, what is not in dispute is that the Firm was retained for the purpose of representing Inglewood in its claim against Carrier for property damage sustained during the 2005 hurricanes. The above referenced case is styled, Inglewood Townhomes Condominium
Association v. Citizens Property Insurance Corporation, Case Number: 201003265CA03 (the “Citizens” litigation).
During the Citizens litigation, the Firm purportedly hired certain thirdparty professionals to assess the extent of Inglewood’s damages. In reality, these three professionals were straws the Firm used to inflate the cost of litigation (collectively the “Straws”). The Straws were: Walter L. Lista, Inc. (“Lista Inc.”)1; Expert Claims Adjusters, Inc. (“Straw 2”); and VEP Construction, Inc. (“Straw 3”). In total, the Firm submitted approximately $128,070.00 in professional fees to Carrier during the the Citizens litigation (the “Straw Costs”). The Straw Costs consisted of: the Lista Inc. fee of $16,000.00; the Straw 2 fee of $91,870.00; the Straw
3 fee of $8,200.00; and mediation fees of $12,000.00.
To shield the fraud from detection by outside parties, the Firm fabricated the Lista Inc. invoice (the “Invoice”), forged Complainant’s signature, and represented to Carrier that the Invoice was a legitimate litigation cost. The Invoice is attached hereto as Exhibit 1. The Firm used the Invoice to defraud Carrier out of $16,000.00. Neither Lista Inc. or Complainant ever
1 Complainant holds a Florida professional engineering license, and renders professional services as an agent of Lista Inc.
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performed any services on behalf of the Firm or Inglewood, nor did Complainant have any knowledge that the Firm used Lista Inc. as a straw in the Firm’s scheme to defraud Carrier. Carrier relied on the Straw Costs as the basis of Inglewood’s damages and settled the Citizens matter for approximately $400,000.00.2
Inglewood objected to the amount of the Straw Costs and attempted to negotiate a reduction with the Firm. During the negotiations, the Firm purportedly advised Inglewood through a series of emails that the Straws would “initiate immediate legal action against Inglewood.” In a second email dated April 6, 2011, Alvarez wrote to Inglewood:
[b]ased on me [sic] conversations with the G.C., engineer and appraiser, I am hereby advising you that they are going to initiate legal action against you to collect their fees; and I STRONGLY URGE Inglewood to avoid further acrimony and litigation, by paying them for their work.” [emphasis original]
The emails are attached hereto as Exhibit 2. In the April 6 email, Alvarez used the sobriquet “engineer” in reference to Complainant. No such conversations ever occurred between the Firm and Complainant. On April 21, 2011, Straw 2, represented by Rodriguez, initiated an action against Inglewood for nonpayment in a case styled, Expert Claims Adjusters, Inc. v.
Inglewood Townhomes Condo Ass’n, Inc., Case Number 201112415CA03 (the “Expert Claims” litigation). The Expert Claims litigation is discussed in detail in Section B.
After Rodriguez commenced the Expert Claims litigation, A/C negotiated a settlement agreement on behalf of Inglewood (the “Settlement”). Alvarez signed the Settlement as assignee of Lista Inc. and Straw 3 despite the fact that Rodriguez claimed to represent Lista Inc. and
2 To settle the Citizens litigation, Carrier paid the Firm approximately $80,000.00 in legal fees. An accounting of the Firm’s fee was never provided to Inglewood, and, as discussed in Section C, forms the basis for Inglewood’s malpractice action against the Firm.
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Straw 3 in the the Expert Claims litigation.3 Pursuant to the Settlement, A/C received $1,591.00, Lista Inc. received a reduced fee of $12,000.00, Straw 2 received a reduced fee of $45,000.00, Rodriguez received $5,000.00 in legal fees, and Straw 3 received a reduced fee of $6,200.00. Under the Settlement, A/C was required to pay Rodriguez and Straw 2 prior to May 12, 2011. Failure to satisfy this condition entitled Straw 2 to a default judgment for the full amount of its preSettlement fee of $91,870.00.4 Ultimately, the Firm caused Inglewood to default under the Settlement by intentionally failing to timely pay Straw 2 and Rodriguez (the “Default”). The Default is discussed in greater detail in Section B.
To perpetuate the Citizens fraud and convert approximately $18,200.00 of Inglewood’s settlement proceeds, the Firm issued two checks to Lista Inc. and Straw 3. On or about May 3, 2011, A/C issued Check 3315, drawn on its Operating Account in the amount of $6,200.00, naming Straw 3 as payee. Alvarez signed that instrument as its maker. On or about May 6, 2011, A/C drafted Check 3327, drawn on its Operating Account in the amount of $12,000.00, naming Lista Inc. as payee. A copy of Check 3327 is attached hereto as Exhibit 3. Carbonell signed that instrument as its maker. At this point, neither Lista Inc. or Complainant had any knowledge of check 3327, the Settlement, or the Expert Claims litigation. Further, neither Lista Inc. or Complainant received any disbursements from A/C because any payments to an outside party would have exposed the fraud. Upon information and belief, the Firm cashed checks 3315 and 3327 and deposited the money back into its own Operating Account. As
3 Inglewood’s default under the Settlement forms the basis for the default judgment in the Expert Claims litigation discussed in section B.
4 Straw 2’s preSettlement fee was $91,870; however, as is discussed in greater detail in Section B, Rodriguez obtained a final judgment in the amount of $128,070.00, plus interest, in violation of rule 43.3, Rules Regulating the Florida Bar.
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further discussed immediately below, the Firm converted Inglewood’s funds by paying itself from the Firm’s IOTA account, disguising the payment as reimbursement of litigation costs.
On or about June 6, 2011, A/C drafted check number 1060, drawn on its IOTA account in the amount of $19,791.00, naming A/C as payee. A copy of the check is attached hereto as Exhibit 4. Upon information and belief, A/C deposited IOTA check 1060 into its Operating Account.5
B. The Expert Claims Litigation
As discussed above, Inglewood’s objection to the Straw Costs in the Citizens litigation prompted Rodriguez and Straw 2 to file the Expert Claims matter against Inglewood for nonpayment. At all relevant times, Straw 2 was represented by Rodriguez. After Rodriguez initiated the litigation, the parties entered into settlement negotiations. As stated above, A/C negotiated the Settlement on behalf of Inglewood. Under the Settlement, Straw 2 received a reduced fee in the amount of $45,000.00 for services allegedly rendered in connection with the
Citizens litigation (the “Straw 2 postSettlement fee”).6 Additionally, Rodriguez received $5,000.00 in legal fees under the Settlement. Pursuant to the Settlement, A/C was required to remit payment to both Straw 2 and Rodriguez prior to May 12, 2011. Under the Settlement, nonperformance of this condition entitled Straw 2 to a default judgment against Inglewood for Straw 2’s preSettlement fee of $91,870.00. A/C was at all times cognizant of this condition, as evidenced by the fact that it a) negotiated the Settlement on behalf of the parties; b) memorialized the terms of the Settlement for the parties; c) referenced the May 12 deadline and
5 IOTA check 1060 represents the postSettlement Lista Inc. and Straw 3 fee, totaling $18,200.00, plus A/C’s additional legal fees of $1,591.00.
6 Adjusters original invoice directed to A/C was in the amount of $91,870.00.
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the fact that time was of the essence in at least two different emails; and d) partially performed its obligations under the Settlement.
As previously stated, Straw 2’s preSettlement fee consisted of approximately $91,870.00 out of the total $128,070.00 in Straw Costs. The remaining balance of $36,200.00 was comprised of a) the Lista Inc. preSettlement fee of $16,000.00; b) the Straw 3 preSettlement fee of $8,200.00; and c) $12,000.00 which represented Inglewood’s share of mediation fees. It should also be noted that, as of April 29, 2014, Straw 2’s registered agent was ACG Registered Agents, LLC (“ACG”). At all relevant times, Carbonell and Alvarez were the managing members of ACG. It should also be noted that, at all relevant times, Alvarez and Rodriguez were partners in numerous business ventures.7 The Florida Division of Corporations documentation is attached hereto as Exhibit 5.
A/C performed some of its obligations under the Settlement by “paying” Lista Inc. and Straw 3, but the Firm ultimately caused Inglewood to default on the Settlement by intentionally failing to pay Straw 2 and Rodriguez before the May 12 deadline. On May 17, 2011, Rodriguez filed for a Clerk’s default against Inglewood due to Inglewood’s failure to file a responsive pleading in the Expert litigation. On May 26, 2011, Rodriguez obtained a final judgment in the amount of $142,420.72 plus fees, costs, and interest (the “Judgment”). Curiously, the Judgment included the preSettlement Lista Inc. fee of $16,000.00,8 the preSettlement Straw 3 fee of $8,200.00, and the $12,000.00 mediation fee. The remaining balance of $14,350.72 consisted of miscellaneous fees and interest. A copy of the Judgment is
7 Alvarez and Rodriguez are currently associated in Realegal Holdings, LLC, a Florida registered LLC, among other entities. ACG Registered Agents, LLC is the agent of record for Realegal Holdings, LLC.
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attached hereto as Exhibit 6.
As previously discussed, A/C issued Checks 3315 and 3327 to Straw 3 and Lista Inc., respectively. Since the Lista Inc. and Straw 3 debts had been previously satisfied by A/C under the Settlement, Rodriguez should have amended the Expert Claims complaint to exclude these amounts from the Judgment. Instead, Rodriguez intentionally omitted material facts from the court, thereby obtaining a judgment in excess of the amount to which his client was entlted. Moreover, Rodriguez claimed to represent the interests of Lista Inc. in the Expert Claims complaint. Shockingly, no attorneyclient relationship ever existed between Rodriguez and Lista Inc. or between Rodriguez and the Complainant in relation to either the Citizens or Expert Claims matters, yet Rodriguez knowingly misrepresented this fact to the court, as well.
On June 1, 2011, Rodriguez filed Straw 2’s motion for a writ of garnishment in the amount of $142,420.72. The writ was directed at, and served on, A/C (the “A/C Writ”). On the same June 1 date, A/C a) answered the writ and acknowledged that it was indebted to Inglewood in the amount of $45,000.00, and that it was holding that amount in trust for Inglewood; and b) issued IOTA check 1054, in the amount of $5,000.00, to Rodriguez. On June 6, 2011, A/C issued IOTA check number 1058, in the amount of $45,000.00, to Straw 2’s agent, Eduardo Rodriguez. Carbonell signed both instruments as the maker. On June 8, 2011, Rodriguez filed a satisfaction of final judgment in garnishment against A/C.
On June 21, 2011, Straw 2 assigned the remainder of the Judgment to RJR Charitable Holdings, LLC (hereinafter “RJR Charitable”). RJR Charitable is wholly controlled by Rodriguez. On February 1, 2012, RJR Charitable filed a motion for writ of garnishment against a bank holding money on deposit for Inglewood (the “JP Morgan Writ”). At the hearing on
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Inglewood’s motion to dissolve the JP Morgan Writ, Alvarez submitted an affidavit from Carbonell wherein Carbonell falsely stated in his sworn affidavit that the Firm did not represent Inglewood in the Expert Claims litigation. The assignment, writs, satisfactions, and affidavit are attached hereto as Exhibit 7. On April 9, 2012, the court entered an Agreed Final Judgment in Garnishment, ordering JP Morgan to pay RJR Charitable the sum of $55,000.00.
In conclusion, the Firm and Rodriguez conspired to convert an additional $55,000.00 from Inglewood by intentionally causing Inglewood to default under the Settlement. As a result, Rodriguez was able to obtain the Judgment and garnish Inglewood’s bank accounts.
C. The Malpractice Action
On May 17, 2013, Inglewood filed a threecount suit against the Firm wherein Inglewood alleges that the Firm committed malpractice by, among other things, damaging Inglewood as a result of the Firm’s failure to disclose its relationship with Rodriguez. That case is styled, Inglewood Townhomes Condominium Association, Inc. v. Benjamin R. Alvarez,
Esq., Jorge L. Carnonell, Esq., Alvarez, Carbonell & Gomez, P.L., Alvarez, Carbonell, Feltman, Jimenez & Gomez, LLC, and Alvarez, Carbonell, Feltman, Jimenez & Gomez, P.L., Case Number: 201317764CA01 (the “Malpractice” litigation).
III. ARGUMENT
A. Violation of the Rules Regulating the Florida Bar
1. Rule 34.3 Misconduct and Minor Misconduct
Complainant alleges that the Firm and Rodriguez (collectively the “Lawyers”) violated Rule 34.3 of the Rules Regulating the Florida Bar. Rule 34.3 provides in pertinent part:
The commission by a lawyer of any act that is unlawful or contrary to honesty
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and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.
Lawyers violated rule 34.3 by: i) fabricating supporting documentation in the Citizens litigation, specifically, the Invoice directed at A/C; ii) executing the Settlement as assignee of Lista Inc.; iii) drafting a negotiable instrument naming Lista Inc. as payee with the knowledge and specific intent to perpetuate the fraud against Carrier and Inglewood;9 iv) endorsing the abovementioned instrument by fraudulently claiming and exercising an assignment of a right which was not granted; v) converting Inglewood’s proceeds from the Citizens litigation by utilizing straws; vi) intentionally causing Inglewood to default on the Settlement; and vii) conspiring to convert Inglewood’s cash reserves as a result of the abovementioned default.
As a product of their expertise in the area of firstparty insurance litigation, Lawyers possess asymmetrical information over the lay population in general, and Inglewood specifically. Lawyers used their position and asymmetrical information to the detriment of Inglewood by manipulating the intricacies of the legal system. Lawyers conduct is highly prejudicial to the administration of justice, and so egregious that it may constitute a violation of state and federal criminal statutes.
2. Rule 41.3 Diligence
Complainant alleges that the Firm violated rule 41.3, Rules Regulating the Florida Bar. Rule 41.3 provides, “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The Comment to the rule further provides that:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer and take whatever lawful
9 Check number 3327 drawn on the A/C Operating Account.
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and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.
The Firm violated rule 41.3 by failing to act diligently in the representation of Inglewood.
Specifically, the Firm failed to act diligently by intentionally failing to satisfy the terms of the
Settlement, thereby causing Inglewood to default under the Settlement and suffer default
judgment. As a result of the Judgment, Rodriguez garnished approximately $55,000.00 of
Inglewood’s cash reserves.
3. Rule 41.4 Communication
Complainant alleges that the Firm violated rule 41.4, Rules Regulating the Florida Bar.
Rule 41.4 provides:
(a) Informing Client of Status of Representation. A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the
representation.
The Firm violated rule 41.4 by failing to inform Inglewood of the status of its representation of
Inglewood throughout the Citizens and Expert Claims litigation, and the Expert Claims
settlement negotiations. The Firm did not properly inform Inglewood of its relationship with
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Rodriguez such that Inglewood could give informed consent to the Firm’s continued representation. Further, the Firm violated subsection (b) of the rule by failing to fully and adequately explain to Inglewood the consequences of a default on the Expert Claims
Settlement.
4. Rule 43.3 Candor Toward the Tribunal
Complainant alleges that the Lawyers violated rule 43.3, Rules Regulating the Florida Bar. Rule 43.3 provides:
(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid
assisting a criminal or fraudulent act by the client...
(4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
Rodriguez violated rule 43.3 by failing to amend the complaint in the Expert Claims litigation to reflect the satisfaction of the Lista Inc. and Straw 3 debts. The Firm violated rule 43.3 by knowingly presenting a falsified affidavit in connection with the Expert Claims litigation. Further, Lawyers violated the rule by utilizing straws to procure a judgment against Inglewood, and failing to disclose this fact to the court.
5. Rule 48.4 Misconduct
Complainant alleges that Lawyers violated rule 48.4, Rules Regulating the Florida Bar. Rule 48.4 provides:
A lawyer shall not:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly
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assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…[or]
(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice.
The Lawyers violate rule 48.4 by utilizing straws to convert Inglewood’s litigation
proceeds, and by conspiring to convert $55,000.00 of Inglewood’s cash reserves. Lawyers’
conduct is prejudicial to the administration of justice.
6. Rule 51.1 Trust Accounts
Complainant alleges that Carbonell and Alvarez violated rule 51.1, Rules Regulating
the Florida Bar. Subsection (b) of the rule provides:
Application of Trust Funds or Property to Specific Purpose.
Money or other property entrusted to an attorney for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must be applied only to that purpose. Money and other property of clients coming into the hands of an attorney are not subject to counterclaim or setoff for attorney’s fees, and a refusal to account for and deliver over such property upon demand shall be deemed a conversion. [emphasis original]
51.1(e) provides:
Notice of Receipt of Trust Funds; Delivery; Accounting.
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. [emphasis original]
Carbonell and Alvarez violated rule 51.1 by a) holding the proceeds of the Citizens litigation in
trust for Inglewood; b) intentionally failing to apply those funds to the specific purpose for which
the money was intended, namely, timely distributing the funds to Inglewood’s creditors as
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required under the Settlement; and c) converting said funds for the Firm’s personal use. Additionally, after it negotiated the Settlement on behalf of Inglewood, the Firm was
obligated under rule 51.1 to promptly notify the thirdparty creditors and distribute Inglewood’s funds by May 12, 2011. The Firm did not distribute the funds due Straw 2 and Rodriguez until June 1, 2011 when it filed a response to Rodriguez’s motion for writ of garnishment. On June 6, 2011, the Firm made the final distribution of funds under the Settlement. The Firm’s violation of the rule ultimately caused Inglewood to default under the Settlement and permitted Rodriguez to garnish Inglewood’s cash reserves.
IV. CONCLUSION
Complainant respectfully requests that the Florida Bar investigate Benjamin R. Alvarez, Jorge L. Carbonell, and Roniel J. Rodriguez for violations of the Rules Regulating the Florida Bar, and fashion sanctions the Bar deems appropriate.