The Florida Bar v. Kelley Andrea Bosecker

Supreme Court of Florida
____________

No. SC16-1387
____________

THE FLORIDA BAR,
Complainant,

vs.

KELLEY ANDREA BOSECKER,
Respondent.

September 27, 2018

PER CURIAM.

We have for review a referee’s report recommending that Respondent,

Kelley Andrea Bosecker, be found guilty of professional misconduct in violation

of the Rules Regulating the Florida Bar (Bar Rules) and disbarred. We have

jurisdiction. See art. V, § 15, Fla. Const. Bosecker has sought review of the

referee’s report. For the reasons that follow, we approve in part the referee’s

factual findings and recommendations as to guilt, and approve the recommended

disciplinary sanction of disbarment.

FACTS

Previously, in case number SC15-1592, Bosecker was the subject of a
Florida Bar (Bar) disciplinary proceeding in which the Court approved the

uncontested report of the referee and found her guilty of violating Bar Rules 4-3.1

(Meritorious Claims and Contentions) and 4-8.4(d) (a lawyer shall not engage in

conduct in connection with the practice of law that is prejudicial to the

administration of justice), and imposed a forty-five day suspension. Fla. Bar v.

Bosecker, No. SC15-1592, 2016 WL 2595926 (Fla. May 5, 2016).

Nearly three months later, on August 1, 2016, the Bar filed a “Petition for

Contempt and Order to Show Cause” against Bosecker, alleging that she was in

contempt of the suspension order in case number SC15-1592, effective May 27,

2016. Specifically, Bosecker failed to comply with Bar Rule 3-5.1(h), the

notification requirement, and had also continued to engage in the practice of law

during her suspension by having direct contact with her clients, engaging in

discussions with opposing counsel, and contacting court personnel pertaining to the

following cases in which she was counsel of record: U.S. Bank, N.A. v. Rucker,

case number 2013-CA-002913, in the Fifth Judicial Circuit (Lake County,

Florida); Bank of New York Mellon v. Hodge, case number 14-006510-CI, in the

Sixth Judicial Circuit (Pinellas County, Florida); JP Morgan Chase Bank, N.A. v.

Investor Trustee Services, LLC, case number 2013-CA-000689, in the Fifth

Judicial Circuit (Lake County, Florida); DeParedes v. Green Tree Servicing, LLC,

case number 5D15-3412, in the Fifth District Court of Appeal; and Investor

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Trustee Services, LLC v. PNC Bank N.A., case number 2D15-4549, in the Second

District Court of Appeal.

As a result of her alleged improper conduct, the Bar sought disbarment.

On August 3, 2016, the Court issued its order to show cause, directing

Bosecker to show cause why she should not be held in contempt or otherwise

disciplined. Bosecker filed her response on September 7, 2016, stating:

[At] no time during the suspension period did she hold herself out to
be an attorney, represent to anyone that she was an attorney, send any
correspondence or email representing that she was an attorney; nor did
Respondent take any action that violated the terms of her suspension
from the Bar.

Based upon her responses to the Bar’s allegations, the case was referred to a

referee.

Following a final hearing, the Report of Referee was filed with the Court on

May 25, 2017. The referee recommended that Bosecker be held in contempt of the

order in case number SC15-1592, and recommended that she had violated Bar

Rules 3-5.1(e) (Suspension), 3-5.1(h) (Notice to Clients), 3-6.1(c) (Notice of

Employment Required),1 and 4-8.4(c) (a lawyer shall not engage in conduct

1. While the Report of Referee makes reference to Bar Rule 3-6.1(c) and to
the fact that Bosecker was employed during her suspension without complying
with the requirements of Bar Rule 3-6.1, the referee also concluded that Bosecker
violated the rule “by having direct client contact while suspended.” Accordingly,
it appears that the referee also intended to reference Bar Rule 3-6.1(d)(1)
(Prohibited Conduct; Direct Client Conduct).

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involving dishonesty, fraud, deceit, or misrepresentation). The referee further

recommended that Bosecker be disbarred. Bosecker filed her “Notice of Intent to

Seek Review of Report of Referee,” and briefs have been filed by the parties.

The Referee’s Findings of Fact and Recommendations as to Guilt.

Based upon the testimony presented and the evidence admitted at the hearing, the

referee made the following findings and recommendations of guilt.

First, the referee found that Bosecker violated Bar Rule 3-5.1(h), as follows.

The Supreme Court of Florida issued an order dated May 5,
2016, in The Florida Bar v. Kelley Andrea Bosecker, Case No. SC15-
1592, suspending Respondent from the practice of law for forty-five
(45) days (the” [sic] Suspension Order’). The Suspension Order was
to be effective thirty (30) days so that Respondent could protect the
interests of her existing clients, unless she notified the court that the
30 days was not needed to protect her clients’ interests. Respondent
was ordered to accept no new business from the date of the
Suspension Order until reinstated, and ordered to fully comply with
Rule 3-5.1(h), Rules Regulating The Florida Bar. TFB Exh. 1.

On June 1, 2016, Respondent filed an “Amended Notice by
Respondent of Commencement of Suspension,” indicating that she
ceased practicing law as of midnight on May 26, 2016, and elected to
commence her suspension on May 27, 2016. TFB Exh. 3. On June 1,
2016, the Court entered an order making Respondent’s suspension
effective May 27, 2016, as requested in Respondent’s notice. TFB
Exh. 4. Thus, Respondent was suspended from May 27, 2016, to July
11, 2016.

From June 3, 2016, through June 13, 2016, Respondent
requested extensions of time to submit her required sworn affidavit
pursuant to Rule 3-5.1(h) to the Bar. The Bar granted Respondent’s
first request for an extension, allowing her to submit the affidavit by
June 13, 2016. TFB Exh. 5. On the day the affidavit was due,
Respondent again asked for additional time from the Bar, which was

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denied. She then filed a “Motion for Extension of Time to File
Affidavit of Providing Suspension Notice” with the Court seeking an
extension solely for her affidavit by June 17, 2016. TFB Exh. 6. In
her motion, Respondent stated she “has sent out the required
suspension notices but needs additional time to finish the list of names
and addresses required to be attached to the Affidavit before the
Affidavit is submitted to the Bar.” The Court entered an order on
June 17, 2016, allowing Respondent until June 17, 2016, to provide
the affidavit to the Bar. TFB Exh. 9. Respondent submitted her Rule
3-5.1 affidavit to the Bar on June 16, 2016. TFB Exh. 8. Respondent
neither requested nor was given an extension to submit the Suspension
Order to the necessary persons or entities. TFB Exhs. 5, 6, 9.

The evidence showed, and Respondent admitted, that she was
still furnishing a copy of her Suspension Order to clients, opposing
counsel, and courts in mid-June 2016, and as late as June 16, 2016.
TFB Exhs. 7, 12d, 13f, 16d, 20e. Additionally, Respondent failed to
provide a copy of the Suspension Order to at least one client, Daniel
and Jill Baez. TFB Exhs. 8, 19 a-b. The Court heard from the
following witnesses who each testified about Respondent’s violation
of Rule 3-5.1(h): Melissa Mara; Respondent; Alicia Raina Whiting-
Bozich, Esq.; Julie Anthousis, Esq.; Chanelle L. Gardner; Judge
Thomas H. Minkoff; Linda Holm; Joanne P. Simmons; Judge Vincent
G. Torpy, Jr.; and, Kimberly Nolen Hopkins, Esq.

....

The Bar’s petition, and the evidence presented at the final
hearing, gave examples of Respondent’s cases in which Respondent
did not provide her clients with notice of her suspension until her
suspension had already begun. Respondent did not give those clients
an opportunity to take action to protect their interests. Additionally,
opposing counsels, Ms. Whiting-Bozich, Ms. Anthousis, and Ms.
Hopkins, testified that as of the dates Respondent contacted them
regarding her clients’ cases, the attorneys had neither received notice
from Respondent that she was suspended nor provided a copy of the
Suspension Order. The purpose of Rule 3-5.1(h) was entirely
thwarted in this case, as Respondent was still furnishing a copy of her
Suspension Order to clients, opposing counsel, and courts several
weeks after she elected to start her suspension on May 27, 2016.

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 The referee next found facts pertaining to her recommendations that

Bosecker was guilty of violating Bar Rules 3-5.1(e) and 3-6.12:

The evidence presented at the hearing established clearly and
convincingly that Respondent violated Rule 3-5.1(e) by continuing to
practice law while suspended, and Rule 3-6.1(c) [sic] by having direct
client contact while suspended. Respondent improperly engaged in
direct contact with her clients during her period of suspension, and
improperly continued to assist her clients during her suspension.
Respondent engaged in improper and prohibited discussions with
opposing counsel during her suspension. Respondent engaged in
improper discussions with court personnel during her suspension.
Respondent held herself out to the courts and opposing counsel as an
attorney eligible to practice law. Respondent was also allegedly
employed during the period of suspension without complying with the
requirements of Rule 3-6.1.

The Referee heard from the following witnesses who testified
about Respondent continuing to practice law while suspended, and her
direct client contact while suspended: Respondent; Alicia Raina
Whiting-Bozich, Esq.; Julie Anthousis, Esq.; Chanelle L. Gardner;
Judge Thomas H. Minkoff; Linda Holm; Grace Ann Fagan, Esq.;
Kimberly Nolen Hopkins, Esq.; and, Erica DeParedes.

At the final hearing, evidence was presented to support this
Rule violation. Respondent stated in the May 27, 2016, letter that she
sent to her clients, opposing counsel, and the courts that she would
monitor the clients’ cases during the suspension period and that the
clients should as well. TFB Exh. 2. Respondent’s letter advised the
clients that if they needed legal assistance during the suspension
period, she would be happy to refer them to an appropriate attorney,
and to feel free to contact her if they had any questions or needed
additional information. Respondent also sent a letter dated June 1,
2016, on her “attorney at law” letterhead addressed to the District

2. As observed previously, the referee’s findings of guilt as to Bar Rule 3-
6.1 appear to pertain to both subdivisions (c) and (d)(1).

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Court of Appeal Clerks in appellate cases she had asking that the
District Court of Appeal Clerks provide a copy of her May 27, 2016,
letter to the Judges assigned to her cases. TFB Exh. 16b.

Respondent’s letters are concerning and speak volumes
regarding her intent to violate the Rules. Respondent should not have
been monitoring her clients’ cases during her suspension period.
Respondent received copies of pleadings and orders filed in her
clients’ cases throughout her suspension because she was still attorney
of record in the cases, and did not promptly notify the courts or
opposing counsel of her suspension. TFB Exhs. 14c, 16c.
Additionally, Respondent’s letter dated May 27, 2016, was not
provided to her clients until mid-June. To give her clients an
opportunity to protect their interests, Respondent should have notified
them of her suspension and provided them with an attorney referral
prior to the effective date of suspension. Respondent should not have
welcomed her clients to contact her during her suspension, as she was
prohibited from having direct contact with them. Each of these
actions violates the Rules and supports a finding of contempt.

The Bar then presented several cases in which Respondent’s
participation violated the Suspension Order. In each case, the
evidence and testimony demonstrated misconduct in the form of
prohibited client contact, lack of employer supervision, and practicing
law during the suspension period. A running theme in all of these
cases was Respondent’s assertion and testimony that other attorneys
supervised her, namely Ann Pellegrino and Andrea Roebuck.
However, prior to and during Respondent’s suspension, the Bar did
not receive any notice from Ms. Pellegrino or Ms. Roebuck pursuant
to Rule 3-6.1(c) indicating that Respondent was employed by either of
them during the period of her suspension. TFB Exhs. 10, 11. In fact,
no such notice was received until after the Bar filed its Petition for
Contempt and Order to Show Cause in this case. Respondent, Ms.
Pellegrino, and Ms. Roebuck each testified that none of them had read
Rule 3-6.1 regarding employment of suspended lawyers until about
September of 2016, although the Bar sent Respondent a letter dated
May 9, 2016, advising her to review Rule 3-6.1 if she intended to be
employed while suspended. Respondent testified that she received the
Bar’s May 9, 2016, letter.

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 ....

In each of these cases, Respondent’s suspension prohibited her
from providing legal services and legal advice. . . . The evidence and
testimony presented clearly and convincingly shows that Respondent
counselled and assisted her clients throughout her suspension, which
is the unauthorized practice of law in violation of her suspension
order.[3]

3. The cases discussed by the referee include the following misconduct
(record citations omitted):

[1] In U.S. Bank v. Rucker, where Respondent represented
Emanuel Rucker. Respondent admitted that on June 30, 2016, she
sent an email to opposing counsel, Ms. Whiting-Bozich and Mr.
Flicker, stating that Respondent had been in contact with Mr. Rucker
and that they were compiling information in the case. In the same
email, Respondent asked if opposing counsel would be agreeable to
extending a discovery deadline and in granting an extension for filing
a counterclaim. Respondent copied her client, Mr. Rucker, on the
email. The testimony and evidence showed that Respondent was not
supervised by an attorney on this case and another attorney did not
direct her to email opposing counsel. . . .

[2] In Bank of New York Mellon v. Hodge, Respondent
represented Lloyd and Karin Hodge. Respondent testified that she
may have drafted and provided the Emergency Motion to Stay
Application for Writ of Possession in the client’s Second District
Court of Appeal case to her clients prior to her suspension. The
clients filed the motion pro se on June 1, 2016. By order dated June
2, 2016, the Second D.C.A. denied the motion. The order stated that,
“[t]he appellants should be aware…that any future pro se filings in
this court will be subject to being stricken without further notice to the
extent that the appellants remained represented by counsel.”
Respondent was served with the court’s June 2, 2016, order as she
was still counsel of record, and she failed to timely notify the court of
her suspension. . . .

Respondent admitted that on June 7, 2016, she sent an email to
Chanelle L. Gardner, Judicial Assistant to the Honorable Thomas H.

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Minkoff, stating that Mr. and Mrs. Hodge were requesting that the
judge consider the motion for stay of the writ entered by the judge on
June 1, 2016, and requesting information regarding what the clients
needed to do to get the judge to make a determination on the motion
the clients filed pro se. Respondent copied her clients and opposing
counsel on the email. Respondent did not indicate in the email that
she was suspended from the practice of law, or that she was not
emailing the court as an attorney. By sending an email to the judicial
assistant requesting information in the client’s case, Respondent
provided a service to her client during her suspension. By copying
her clients on the email, Respondent had prohibited contact with her
clients during her suspension.

. . . Furthermore, and glaringly significant, Respondent’s email
failed to indicate she was contacting the court on behalf of another
attorney. . . .

[3] In JP Morgan Chase Bank v. Investor Trustee Services,
Respondent represented Investor Trustee Services. Respondent
admitted that on or about the morning of June 14, 2016, Respondent
left a voicemail message and sent an email to Linda Holm, Judicial
Assistant to the Honorable Sandra Champ, indicating that the
defendant would be filing a motion to cancel a foreclosure sale set for
June 22, 2016, based on a pending motion for rehearing, and also
requesting information and hearing times in the matter. . . .

....

[4] In DeParedes v. Green Tree Servicing, Respondent
represented Erika and Eduardo DeParedes. Respondent admitted that
she engaged in two instances of direct contact with her client, Erica
DeParedes, during the suspension period. On or about June 9, 2016,
Respondent was served with the Appellee’s Answer Brief as
Respondent was counsel of record in the case, and failed to timely
inform opposing counsel, Kimberly Hopkins, or the court of
Respondent’s suspension. Respondent admitted that she contacted
Ms. DeParedes on or about June 9, 2016, to advise that she had
received service of the Appellee’s Answer Brief, that a Reply Brief
needed to be filed, and was due in 20 days. . . .

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 On June 16, 2016, Respondent emailed opposing counsel, Ms.
Hopkins, and asked if she would consent to an extension until July 28
for the filing of a reply brief in the case. Respondent copied her
client, Ms. DeParedes, on the email. . . .

....

[5] In Investor Trustee Services, LLC v. PNC Bank Nat’l Ass’n,
Respondent admitted that on June 23, 2016, during the period of
Respondent’s suspension, she sent an email to opposing counsel,
Kimberly Hopkins, stating that Respondent was contacting Ms.
Hopkins on behalf of attorney Andrea Roebuck who was retained and
would be filing a notice of appearance in the case. Respondent’s June
23, 2016, email asked Ms. Hopkins if she would agree to Ms.
Roebuck filing a motion for reinstatement of the case. The docket
shows that Ms. Roebuck filed a notice of appearance and motion for
reinstatement on June 23, 2016, which was denied on July 7, 2016. In
fact, the docket shows that nothing further happened in the appeal
until Respondent filed a notice of appearance on July 21, 2016, which
only provides service to opposing counsel. Ms. Roebuck’s
appearance and filing of the motion for reinstatement were merely
placeholders until Respondent’s suspension ended.

[6] In Wells Fargo Bank v. Reed, Respondent represented
Mealy and Betty Jo Reed. In this case, Respondent inappropriately
contacted opposing counsel, Ms. Anthousis, and engaged in the
practice of law during the period of her suspension by providing legal
services to her clients including representing the clients’ interests in
getting a loan modification, and providing legal advice regarding what
the clients needed to do to finalize their loan modification. On June 2,
2016, Respondent sent an email to opposing counsel regarding Mr.
Reed providing proof of delivery of his April payment to Wells Fargo,
but that the payment had not been cashed. Respondent copied her
client on the June 2, 2016, email. On June 13, 2016, Respondent sent
an email to opposing counsel stating that the Reeds were never
provided a permanent modification agreement by the lender to sign,
and that Respondent and the client had been requesting the agreement
for some time. Respondent copied her client on the June 13, 2016,

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 Lastly, the referee found facts pertaining to her recommendation that

Bosecker was guilty of violating Bar Rule 4-8.4(c), as follows:

Respondent admitted that on June 13, 2016, Respondent filed a
Motion for Extension of Time to File Affidavit of Providing
Suspension Notice, stating that Respondent had sent out the required
suspension notices but needed additional time to finalize the list of
names and addresses required to be attached to the Affidavit, and
requesting an extension until June 17, 2016, to furnish her Rule 3-5.1
sworn affidavit to The Florida Bar. TFB Exh. 6. However, on June
14, 2016, and June 16, 2016, Respondent sent out the required
suspension notice to her clients, opposing counsel, and the court in at
least two (2) cases. TFB Exhs. 7, 20e. Respondent misrepresented in
her motion filed on June 13, 2016, that she had sent out the required
suspension notices. Respondent knowingly made a misrepresentation
and never corrected her misstatement to the Court. Furthermore,
Respondent engaged in deception and dishonesty by failing to timely
inform her clients, opposing counsel, and the courts of her suspension.
Although Respondent elected to start her suspension early, she waited
for weeks before sending out the required notices. In several of the
cases addressed at the final hearing, Respondent’s clients were not
given prior notice of suspension in order to protect their own interests.
Moreover, Respondent continued to communicate with opposing
counsel and the courts in her cases without notifying them that she
was suspended.

The Referee’s Recommended Sanction. In determining the appropriate sanction

to recommend, the referee first considered the following Florida Standards for

email. On June 15, 2016, opposing counsel’s assistant sent
Respondent loan modification documents for the borrower to sign.
Respondent thanked opposing counsel’s assistant by email also on
June 15, 2016. The client was copied on both emails. Ms. Anthousis
testified that she believed Respondent was representing the Reeds
during this time.

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Imposing Lawyer Sanctions: 3.0 (Generally); 4.61 (“Disbarment is appropriate

when a lawyer knowingly or intentionally deceives a client with the intent to

benefit the lawyer or another regardless of injury or potential injury to the client.”);

6.11 (“Disbarment is appropriate when a lawyer: (a) with the intent to deceive the

court, knowingly makes a false statement or submits a false document; or (b)

improperly withholds material information, and causes serious or potentially

serious injury to a party or causes a significant or potentially significant adverse

effect on the legal proceeding.”); 7.1 (“Disbarment is appropriate when a lawyer

intentionally engages in conduct that is a violation of a duty owed as a professional

with the intent to obtain a benefit for the lawyer or another, and causes serious or

potentially serious injury to a client, the public, or the legal system.”); and 8.1

(“Disbarment is appropriate when a lawyer: (a) intentionally violates the terms of a

prior disciplinary order and such violation causes injury to a client, the public, the

legal system, or the profession; or (b) has been suspended for the same or similar

misconduct, and intentionally engages in further similar acts of misconduct.”).

Additionally, the referee found five aggravating factors under Florida

Standard for Imposing Lawyer Sanctions 9.22, including the following: (a) prior

disciplinary offenses; (b) dishonest or selfish motive; (d) multiple offenses; (g)

refusal to acknowledge wrongful nature of conduct; and (i) substantial experience

in the practice of law. The referee found that the mitigating circumstances under

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Florida Standard for Imposing Lawyer Sanctions 9.32, that Bosecker argued for,

did not exist.

ANALYSIS

Rule Violations

The Court’s review of the referee’s findings of fact as to each rule violation

is limited, and if a referee’s findings of fact are supported by competent,

substantial evidence in the record, this Court will not reweigh the evidence and

substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So. 2d 79,

86 (Fla. 2000); see Fla. Bar v. Jordan, 705 So. 2d 1387, 1390 (Fla. 1998).

Moreover, “[t]he referee is in a unique position to assess the credibility of

witnesses, and his judgment regarding credibility should not be overturned absent

clear and convincing evidence that his judgment is incorrect.” Fla. Bar v. Tobkin,

944 So. 2d 219, 224 (Fla. 2006) (quoting Fla. Bar v. Thomas, 582 So. 2d 1177,

1178 (Fla. 1991)). As to the recommendations of guilt, the Court has stated that

the referee’s factual findings must be sufficient under the applicable rules to

support the recommendations. See Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58

(Fla. 2005). Here, the referee found Bosecker guilty of violating Bar Rules 3-

5.1(e), 3-5.1(h), 3-6.1(c), and 4-8.4(c), which are discussed below in turn.

Bar Rule 3-5.1(e) (Suspension). With regard to Bar Rule 3-5.1(e), the

referee found that the Bar established that Bosecker had engaged in the practice of

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law throughout the period of her suspension. The record evidence established,

with respect to specific cases, that Bosecker continued to assist her clients during

her suspension, based upon such conduct as advising her clients that she would

monitor their cases and having had discussions with opposing counsel and court

personnel during her suspension without advising them that she was under

suspension. Bosecker also received copies of pleadings and orders filed in her

clients’ cases throughout her suspension because she was still attorney of record in

the cases, and did not promptly notify the courts or opposing counsel of her

suspension.

Bar Rule 3-5.1(h) (Notice to Clients). The evidence showed, and Bosecker

admitted at the hearing before the referee, that, while the suspension was effective

May 27, 2016, she was still furnishing copies of her suspension order to clients,

opposing counsel, and courts in mid-June 2016. In addition, in seeking an

extension from this Court on June 13, 2016, to file her affidavit pertaining to the

suspension notices, Bosecker represented to the Court that all notices had been

provided. This was a misrepresentation of fact.

Bar Rules 3-6.1(c) (Notice of Employment Required) and 3-6.1(d)(1)

(Prohibited Conduct; Direct Client Conduct). Bosecker testified that she was

working for attorneys Pellegrino and Roebuck at the time that she was suspended.

While Bar Rule 3-6.1 allows for attorneys under suspension or disbarment to

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perform services that may be ethically performed by nonlawyers, notice is required

pursuant to Bar Rule 3-6.1(c). Specifically, Bar Rule 3-6.1(c) requires that

“[b]efore employment commences, the entity must provide The Florida Bar with a

notice of employment and a detailed description of the intended services to be

provided by the individual subject to this rule.” While Bosecker admitted that no

such notice was provided to the Bar, it appears that the hiring entity is responsible

for providing the notice and therefore, Bosecker is not in violation Bar Rule 3-

6.1(c) under these circumstances.

However, Bar Rule 3-6.1(d)(1) prohibits suspended or former lawyers

employed by attorneys from having direct contact with any client. In this case, the

referee found numerous instances in which Bosecker had violated that rule.

Bar Rule 4-8.4(c) (A lawyer shall not engage in conduct involving

dishonesty, fraud, deceit, or misrepresentation). As previously indicated,

Bosecker engaged in misrepresentation when she advised the Court on June 13,

2016, that she had notified all of her clients, opposing counsel, and the courts of

her suspension. Bosecker was also dishonest in failing to promptly notify her

clients, opposing counsel, and the courts of her suspension. Although Bosecker

argues that she was merely mistaken and did not have the intent to deceive, her

actions demonstrate otherwise.

Based upon the foregoing, we approve the referee’s findings of fact and

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recommendations as to guilt pertaining to the violations of Bar Rules 3-5.1(e), 3-

5.1(h), 3-6.1(d)(1), and 4-8.4(c). However, we disapprove the referee’s

recommendation that Bosecker violated Bar Rule 3-6.1(c).

Admissibility of Evidence

With regard to the admissibility of evidence in a Bar proceeding, “a referee

has wide latitude to admit or exclude evidence.” Tobkin, 944 So. 2d at 224.

Because Bar disciplinary proceedings are neither civil nor criminal, but are quasi-

judicial, the rules of evidence are not binding upon the referee. Fla. Bar v.

Shankman, 41 So. 3d 166, 169 (Fla. 2010). Furthermore, a referee may consider

any evidence that is deemed relevant in determining a factual question. Fla. Bar v.

Fredericks, 731 So. 2d 1249, 1251 (Fla. 1999). In addition, a referee’s decision

regarding the admissibility of evidence will only be disturbed on review upon an

abuse of discretion. Fla. Bar v. D’Ambrosio, 25 So. 3d 1209, 1215 (Fla. 2009).

Bosecker argues that before the referee, the Bar improperly presented

evidence and testimony from attorney Julie Anthousis pertaining to “the Mealy and

Betty Reed loan modification,” and that the referee should not have heard or

considered the claim because it was not included in the Bar’s petition. Bosecker

further contends that the referee should have granted her request to submit

evidence in response to the Bar’s allegations.

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 In response, the Bar argues that the referee properly considered “uncharged

conduct . . . that was within the scope of the specific allegations in the Bar’s

Petition.” The Bar explains that it filed its Final Witness List disclosing Ms.

Anthousis as a witness in the case, and filed its Final Exhibit List showing several

documents related to Wells Fargo Bank v. Reed as exhibits. Counsel for Bosecker

objected to the introduction of the exhibit as outside the scope of the pleadings.

The referee overruled Bosecker’s objection, following argument by the Bar that the

evidence was relevant to the guilt phase and was within the scope of the Bar’s

allegations of misconduct.

Here, the referee did not abuse her discretion in admitting the testimony and

evidence relating to Bosecker’s actions with regard to the Reed case. Rather, the

evidence was relevant because the Bar was seeking contempt and disbarment based

upon Bosecker’s misconduct in practicing law while under suspension, and the

Reed case was one more instance of such misconduct. Moreover, the referee

properly excluded Bosecker’s evidence in response, on the basis that she sought to

submit evidence at the end of the hearing that had not previously been disclosed to

the Bar.

Bosecker also argues that the referee erred in denying her motion to reopen

evidence to admit additional client letters. Without further argument or proof,

Bosecker contends that the referee was biased against her. The facts underlying

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this claim are as follows. The Case Management Order in this case, entered on

January 3, 2017, indicated that April 7, 2017, was the deadline for the disclosure of

witnesses and exhibits. Bosecker received the additional mitigation letters after the

April 27-28, 2017, final hearing. Because the parties had been put on notice of the

date by which evidence or witnesses had to be disclosed, Bosecker did not comply

with the Case Management Order, and she did not seek to introduce the two

mitigation letters before the close of the evidence, we conclude that the referee did

not abuse her discretion in not admitting the additional mitigating evidence.

Discipline

In reviewing a referee’s recommended discipline, this Court’s scope of

review is broader than that afforded to the referee’s findings of fact because,

ultimately, it is the Court’s responsibility to order the appropriate sanction. See

Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla.

Const. However, generally speaking this Court will not second-guess the referee’s

recommended discipline as long as it has a reasonable basis in existing case law

and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v.

Temmer, 753 So. 2d 555, 558 (Fla. 1999). In addition, the Court views cumulative

misconduct more seriously than an isolated instance of misconduct, and cumulative

misconduct of a similar nature warrants an even more severe discipline than might

dissimilar conduct. Fla. Bar v. Walkden, 950 So. 2d 407, 410 (Fla. 2007).

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Moreover, in imposing a sanction, the Court considers the following factors: “a)

the duty violated; b) the lawyer’s mental state; c) the potential or actual injury

caused by the lawyer’s misconduct; and d) the existence of aggravating and

mitigating factors.” Fla. Stds. Imposing Law. Sancs. 3.0.

Here, the referee found the following Standards applied: 3.0 (Generally);

4.61 (“Disbarment is appropriate when a lawyer knowingly or intentionally

deceives a client with the intent to benefit the lawyer or another regardless of

injury or potential injury to the client.”); 6.11 (“Disbarment is appropriate when a

lawyer: (a) with the intent to deceive the court, knowingly makes a false statement

or submits a false document; or, (b) improperly withholds material information,

and causes serious or potentially serious injury to a party or causes a significant or

potentially significant adverse effect on the legal proceeding.”); 7.1 (“Disbarment

is appropriate when a lawyer intentionally engages in conduct that is a violation of

a duty owed as a professional with the intent to obtain a benefit for the lawyer or

another, and causes serious or potentially serious injury to a client, the public, or

the legal system.”); and 8.1 (“Disbarment is appropriate when a lawyer: (a)

intentionally violates the terms of a prior disciplinary order and such violation

causes injury to a client, the public, the legal system, or the profession; or (b) has

been suspended for the same or similar misconduct, and intentionally engages in

further similar acts of misconduct.”). While Bosecker argues that these standards

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should not apply, her argument is based solely upon her own interpretation of the

facts from her own testimony, and contrary to the referee’s findings.

Next, the referee found under Standard 9.22 the following factors in

aggravation: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (d)

multiple offenses; (g) refusal to acknowledge wrongful nature of conduct; and (i)

substantial experience in the practice of law. “A referee’s findings in aggravation

carry a presumption of correctness that should be upheld unless clearly erroneous

or without support in the record.” Fla. Bar v. Ticktin, 14 So. 3d 928, 937 (Fla.

2009). Bosecker has not made this showing. Instead, she argues her position with

regard to the aggravating factors, and ignores the facts as found by the referee.

“Because the referee is in the best position to judge the credibility of the witnesses,

we defer to the referee’s assessment.” Fla. Bar v. Forrester, 916 So. 2d 647, 652

(Fla. 2005). The evidence before the referee readily supports her findings in

aggravation. In addition, the referee found that the mitigating circumstances under

Standard 9.32 that Bosecker argued for did not exist. “A referee’s decision not to

find that a mitigating or aggravating factor applies also carries a presumption of

correctness and will not be disturbed unless clearly erroneous or without support in

the record.” Fla. Bar v. Varner, 992 So. 2d 224, 230 (Fla. 2008). Here, Bosecker

argues that the referee erroneously failed to find Standards 9.32(e) (full and free

disclosure to disciplinary board or cooperative attitude toward proceedings),

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9.32(g) (character or reputation) and 9.32(l) (remorse). However, “[t]he fact that

there is some evidence in the record to support a finding that a mitigating factor

might apply does not mean that the referee should have necessarily found it

applicable.” Fla. Bar v. Herman, 8 So. 3d 1100, 1106 (Fla. 2009).

Finally, the referee cited and discussed numerous cases in support of her

recommendation of disbarment. For example, the referee cited Florida Bar v.

Brown, 635 So. 2d 13, 13-14 (Fla. 1994), for the proposition that the presumptive

penalty for a violation of a prior disciplinary order is disbarment, absent strong

extenuating circumstances. In addition, Florida Bar v. Bern, 425 So. 2d 526, 528

(Fla. 1982), provides in pertinent part that “[i]n rendering discipline, this Court

considers the respondent’s previous disciplinary history and increases the

discipline where appropriate.” Here, Bosecker was found to have practiced law

while under suspension. Cases relied upon and supporting disbarment for such

misconduct include Florida Bar v. Norkin, 183 So. 3d 1018 (Fla. 2015); Florida

Bar v. Lobasz, 64 So. 3d 1167, 1173 (Fla. 2011); D’Ambrosio, 25 So. 3d at 1220;

and Florida Bar v. Greene, 589 So. 2d 281, 282-83 (Fla. 1991). Additional cases

supporting disbarment for continuing to practice law while under suspension

include Forrester, 916 So. 2d at 654–55, and The Florida Bar v. Rood, 678 So. 2d

1277, 1278 (Fla. 1996).

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 Lastly, Bosecker argues that “[t]he rules treat suspended attorneys that are

working as a legal assistant differently than individuals who are not lawyers and

working as legal assistants,” and that as a result, her equal protection rights were

violated. The Bar disagrees, pointing out that Bosecker is not a nonlawyer, and as

such, is subject to the Bar Rules. One such prohibition is that a suspended attorney

shall not engage in direct client contact with clients. Bosecker violated that

prohibition. Contrary to Bosecker’s belief, there is no constitutional right to

practice law; rather, it is a privilege to which the Court has exclusive jurisdiction

under the Florida Constitution to oversee. Based upon this Court’s exclusive

jurisdiction, we have “the inherent power and duty to prescribe standards of

conduct for lawyers, to determine what constitutes grounds for discipline of

lawyers, to discipline for cause attorneys admitted to practice law in Florida, and to

revoke the license of every lawyer whose unfitness to practice law has been duly

established.” R. Regulating the Fla. Bar 3-1.2. Having violated the Bar Rules 3-

5.1(e), 3-5.1(h), and 4-8.4(c)—i.e, having failed to provide notice to her clients and

the courts where she had cases pending that she was under suspension, being in

direct contact with clients and judicial staff on behalf of her clients pertaining to

those cases, holding herself out to be authorized to practice law, and then

continuing to act on behalf of her clients without acknowledging that she was no

longer so authorized to act—Bosecker can hardly claim that she acted only as any

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paralegal or legal assistant would do. Based upon the foregoing, we approve of the

referee’s report in part on the issue of guilt and approve the referee’s report on the

issue of discipline.

CONCLUSION

Accordingly, Kelley Andrea Bosecker is hereby disbarred from the practice

of law in the State of Florida. Because Bosecker is currently under suspension, the

disbarment is effective immediately. Bosecker shall fully comply with Rule

Regulating the Florida Bar 3-5.1(h).

Judgment is entered for The Florida Bar, 651 East Jefferson Street,

Tallahassee, Florida 32399-2300, for recovery of costs from Kelley Andrea

Bosecker, in the amount of $3,841.03, for which sum let execution issue.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS DISBARMENT.

Original Proceeding – The Florida Bar

Joshua E. Doyle, Executive Director, Tallahassee, Florida, Chardean Mavis Hill
and Katrina S. Brown, Bar Counsel, Tampa, Florida, and Adria E. Quintela, Staff
Counsel, The Florida Bar, Sunrise, Florida,

for Complainant

Kelley Andrea Bosecker, pro se, St. Petersburg, Florida,

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for Respondent

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