IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, Supreme Court Case No.

SC08-1093

v.
SALLY NATASHA SAWH, Respondent. The Florida Bar File No. 2008-70,885(1 U)

REPORT OF REFEREE I. SUMMARY OF PROCEEDINGS: Pursuant to the undersigned being duly appointed as Referee for the Supreme Court of Florida to conduct disciplinary proceedings as provided for by Rules 37.2(h)(2) and 3-7.6(m) of the Rules Regulating The Florida Bar, a final hearing of this cause was undertaken. All of the pleadings, notices, motions, orders, and exhibits are forwarded with this report and the foregoing constitute the record in this case. The following attorneys appeared as counsel for the parties: On behalf of The Florida Bar: Margarita Ines Cimadevilla The Florida Bar 444 Brickell Avenue, Suite M-100 Miami, Florida 33131 Michael Tarre 2 South Biscayne Boulevard, Suite 3700 Miami, Florida 33131 DPCElVED

On behalf of Respondent:

OCT Ofi 2008

II.

FINDINGS OF FACT: A. Jurisdictional Statement: Respondent is and was at all times material

herein a member of The Florida Bar, albeit suspended pursuant to an order of emergency suspension dated April 11, 2008, and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida B. Findings of Fact: Having entered orders granting The Florida Bar's

Motion for Entry of Default Judgment and Motion for an Order Deeming Matters Admitted prior to the final hearing, all the matters recited in The Bar's Request for Admissions served on Respondent on June 9, 2008, and deemed admitted pursuant to said order dated August 13, 2008, are adopted herein as the factual findings of this referee. Those matters deemed admitted are as follows: 1. That pursuant to a subpoena duces tecum duly served upon Respondent

on or about March 14, 2008, commanding Respondent to appear before the Staff Auditor, on March 27, 2008, her attorney appeared at The Florida Bar offices and produced bank statements, canceled checks and deposit slips from the account identified as Law Office of Sally Sawh, TOLTA Trust Account ^R, and operating account /^^Ifcoth accounts maintained at Regions Bank, for the period of June 1,2006, to February 29,2008, but that the original records for January, June, August, November, December 2007, and January and February 2008, were

missing and that Respondent failed to provide the wire transfers and cashier's checks issued. 2. That Respondent produced some HUD-1 statements, some client ledger

cards and an incomplete receipt and disbursement journal. 3. That from October 2006 through November 2006, Respondent engaged in

a pervasive pattern of transactions in her trust account, maintained at Regions Bank account ?iJHHMMHbwhich indicate that trust funds deposited for one purpose or client were being used to cover obligations which had arisen prior to those funds being deposited and which obligations pertained to a different client or matter. 4. That on October 3, 2006, the beginning balance in Respondent's trust

account was $702.56 and that on that day Respondent deposited $6,000.00 in the trust account and identified the deposit as pertaining to Jean Dahan. 5. That on October 4, 2006, Respondent deposited $40,000.00 in the trust

account and identified the deposit as pertaining to OSW2 and that there were two (2) additional small deposits such that the balance in the trust account on October 4,2006, was $47,247.56. 6. That on October 4, 2006, check number 1546 in the amount of

$13,659.50, issued on or about September 13, 2006, payable to Dade County Recorder's office pertaining to a client identified as "Maruitto" was negotiated by the

bank. 7. That the funds used to pay for this check were from the deposits of

$6,000.00 fromDahan and $40,000.00 fromOSW2. 8. That the client ledger card of "Maruitto" reflected that the funds

pertaining to this transaction were deposited in Respondent's trust account in August 2006, and were used for other purposes. 9. That on October 10, 2006, a deposit of $15,000.00 was made to the

account from a client identified as KPMV Inc. 10. That on that day there was a deposit in the amount of $ 100,000.00 and a

disbursement of $96,000.00 from a client identified as Shapiro, leaving $4,000.00 pertaining to this client in the trust account. 11. That on that day check number 1551 in the amount of $68,060.00, issued

on or about September 28, 2006, payable to the clients Felix Slepsky and Polina Guzman, was negotiated by the bank, creating an overdraft in the trust account of $15,502.94. 12. That the client ledger card of Felix Slepsky and Polina Guzman reflects

that the funds pertaining to check number 1551 were deposited in the trust account on August 30, 2006, and were used for other purposes. 13. That on October 23, 2006, Respondent's trust account ended with an

overdraft in the amount of $42,690.25, which overdraft was created because the following three (3) checks issued by Respondent were negotiated by the bank: Check number 1567, in the amount of $21,612.50, and check number 1568, in the amount of $24,450.00, both pertaining to a client identified as Dimitri Pinkhasov, and check number 1574, in the amount of $74,850.41, pertaining to a client identified as Maria Ruffm. 14. That the funds of Ms. Ruffm were deposited in Respondent's trust

account in June 2006 and the funds of Dimitri Pinkhasov were deposited in the trust account during August and September, 2006. 15. That, in fact, based on the entries on the client ledger card, on October 23,

2006, prior to the negotiation of checks number 1567 and 1568, there should have been approximately $ 110,162.50 of Mr. Pinkhasov's funds in Respondent's trust account. 16. That on October 25, 2006, Respondent received a wire transfer in the

amount of $647,386.58 from a client identified as Zauulunov and another wire transfer in the amount of $ 1,141,988.17 froman unidentified party. 17. That from those funds Respondent was able to cover the overdraft and

issue a wire transfer $128,913.47 to a client identified as Remcharitar. 18. That the funds pertaining to Mr. Remcharitar were deposited in

Respondent's trust account in July, 2006.

19.

That in addition to the transactions identified above, four (4) other client

ledger cards reflect that funds were deposited prior to October 1, 2006, which funds had not been disbursed as of that date. Funds in the amount of $200,000.OObelonging to Judy Dickstein where deposited in September 2006, and disbursed after October 1, 2006; Sara Walton should have had $64,537.31 in the trust account on October 1, 2006, however, her funds were disbursed after October 1, 2006; client OSW2 should have had $85,380.00 on October 1,2006, in the trust account, but funds in that amount were not disbursed until after October 1,2006; and Damian Romay, who in October 1, 2006, should have had $36,100.00 in the trust account also had funds disbursed after October 1 st . 20. That a partial reconciliation of Respondent's trust account on October 1,

2006, revealed that the balance in the account was $702.56, while Respondent's liabilities to clients on that day were as follows; Client - Miguel Maruitto Client - Slepsky & Guzman Client - Dimitri Pinkhasov Client - Maria Ruffm Client - Remcharitar Client-Judy Dickstein Client - Sara Walton Client -OSW2 Client - Damian Romay Total 21. $ 13,659.50 68,060.00 110,162.50 74,850.41 128,913.47 200,000.00 64,537.31 85,380.00 36,100.00 $ 781,663.19

That on or about November 2,2006, Jean Dahan, a citizen and resident of

the Republic of France transferred $3,799,990.00 to Respondent's trust account, maintained at Regions Bank accountMHHHH^o cover the anticipated expenses for the purchases of six (6) condominium units in and around Miami-Dade County. 22. That Respondent provided a client ledger card pertaining to the

transactions of Mr. Dahan and identified it as "Complete Dahan ledger latest", which reflects the deposit described in paragraph 21, and two wire transfers dated December 8, 2006, going to the firm of Greenberg Traurig for Dahan "2205" and "905", respectively. 23. That on November 13,2006, eleven (11) days after receiving Mr. Dahan's

funds, and more than three (3) weeks prior to any disbursement of his funds as reflected in the client ledger card, the balance in Respondent's trust account was $ 1,991,306.39, that is, $ 1,808,683.61 short of the total amount of Mr. Dahan's funds that should have been in the account. 24. That according to the client ledger card supplied by Respondent, on

December 29, 2006, Mr. Dahan should have had $2,654,915.38. 25. That the balance in Respondent's trust account on that date was

$128,570.67. 26. That during the period of July 12, 2006, to December 24, 2007, the trust

account was overdrawn forty-three (43) times, from a high of $80,958.31 on

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September 22, 2006, to a low of $42.66 on August 28, 2006. 27. That the records reveal fourteen (14) instances of trust account checks

being presented and dishonored by the bank due to insufficient funds. In particular, one check pertaining to a client identified as Judy Dickstein/Omni, in the amount of $8,250.00, was returned by the bank three (3) times due to insufficient funds. III. RECOMMENDATION AS TO GUILT: Based on the above outlined findings of fact, as well as this Referee's ruling deeming all rule violations recited in the Bar's Request for Admissions admitted by Respondent, I recommend that Respondent be found guilty of violating the following Rules Regulating The Florida Bar: Rule 3-4.3 (Misconduct and Minor Misconduct) of the Rules of Discipline; Rules 4-1.15 (Safekeeping Property), 4-8.4(a) (A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another), and 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that it shall not be professional misconduct for a lawyer or a criminal law enforcement agency or regulatory agency to advise others about or to supervise another in an undercover investigation, unless prohibited by law or rule, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency or regulatory agency to participate in an undercover
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investigation, unless prohibited by law or rule) of the Rules of Professional Conduct; and Rules 5-1.1 (b) (Application of Trust Funds or Property to Specific Purpose) and 51.2(g) (Failure to comply with subpoena) of the Rules Regulating Trust Accounts. IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: Based on the foregoing findings of fact, I hereby recommend that Respondent be disbarred. In reaching this recommendation I relied on The Florida Bar v. Shanzer, 572 So. 2d 1382 (Fla. 1991) (Court has repeatedly asserted that misuse of client funds is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate sanction) and The Florida Bar v. Spear, 887 So. 2d 1242 (Fla. 2004) (referee's recommendation of a three year suspension for attorney who converted client funds for an unauthorized use did not have basis in law, as sanction other than disbarment in misappropriation of client fund cases is only appropriate where exceptional mitigating circumstances exist to rebut the presumption). V. PERSONAL HISTORY, PAST DISCIPLINARY RECORD, AGGRAVATING FACTORS, AND MITIGATING FACTORS: Prior to recommending discipline, pursuant to Rule 3-7.6(m)(l)(C) of the Rules of Discipline, I considered the following: A. Personal History of the Respondent:

Age: 35
Date Admitted to Bar: September 26, 1996 Prior disciplinary record: 1. 2. The Florida Bar v. Sawh, The Florida Bar File No. 200470,751 (11J) - admonishment. The Florida Bar v. Sawh, The Florida Bar File No. 200870,992(11J-MES), Supreme Court Case No. SC08-690 Emergency suspension.

B.

Aggravating Factors: 9.22 (a) prior disciplinary history 9.22 (b) dishonest or selfish motive; 9.22 (c) a pattern of misconduct; 9.22 (d) multiple offenses.

C.

Mitigating Factors: Respondent lacked mentoring as a young attorney.

VI.

STATEMENT OF COSTS AND RECOMMENDATION AS TO THE MANNER IN WHICH COSTS SHOULD BE TAXED: I find that the following costs were reasonably incurred by The Florida Bar in

these proceedings and should be assessed against Respondent: Administrative costs Rule3-7.6(q)(l)(I) Court Reporter's attendance at Final hearing held on: September 12,2008
10

$ 1,250.00

97.50

Staff Auditor's Costs Bar Counsel Travel Costs TOTAL:

$ 2,376.00
$

16.38

$ 3,739.88

It is recommended that the foregoing costs be assessed against Respondent. Taxation of costs of this disciplinary proceeding should be assessed against Respondent, with execution to issue plus interest at the prevailing statutory rate to accrue on all costs not paid within thirty (30) days of entry of the Supreme Court's final order, unless the time for payment is extended by the Board of Governors.

DATED this 2-

day of

, 2008.

ROGE^/A. SILVER, Referee Juvenile Justice Center 3300 Northwest 27th Avenue, Room 212 Miami, Florida 33142 Copies furnished to: Margarita I. Cimadevilla, Bar Counsel Michael Tarre, Attorney for Respondent Kenneth L. Marvin, Director of Lawyer Regulation

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