Fla. B. v. Mirabal

390 So.3d 1172

The FLORIDA BAR, Complainant,

v.Miguel Fernando MIRABAL, Respondent.

No. SC2021-1469

Supreme Court of Florida.

July 11, 2024

Original Proceeding - The Florida Bar

Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, Jennifer R. Falcone, Bar Counsel, The Florida Bar, Miami, Florida, and Mark Lugo Mason, Bar Counsel, The Florida Bar, Tallahassee, Florida, for Complainant

Herman J. Russomanno and Herman J. Russomanno III, of Russomanno & Borrello, P.A., Miami, Florida, for Respondent

PER CURIAM.

We have for review a referee’s report recommending that Respondent, Miguel Fernando Mirabal, be found guilty of professional misconduct in violation of the Rules Regulating The Florida Bar (rules) for repeatedly certifying as correct campaign finance reports he knew were false, making material misrepresentations and omissions in his application to fill a judicial vacancy with the Judicial Nominating Commission (JNC), and for his misconduct during these disciplinary proceedings.¹ As a sanction for his misconduct, the referee recommends that we disbar Mirabal from the practice of law in Florida.

Mirabal challenges the referee’s report. He admits that he made "mistakes" in his pursuit of judicial office but maintains that his conduct was entirely unintentional. He also argues that disbarment is too harsh a sanction in this case, and that if any disciplinary action is warranted against him, we should impose no more than a lengthy suspension. We reject these arguments and approve the referee’s factual findings and recommendations as to guilt, except for the recommendations of guilt as to rules 4-8.1(a), 4-8.2(b), and Canon 7 of the Code of Judicial Conduct, which we disapprove. We also approve the referee’s recommended sanction and disbar Mirabal from the practice of law in Florida.

I. Campaign Finance Reports

In 2017, Mirabal filed to run for election to a county court judgeship in Miami-Dade County. He initially designated himself the campaign’s treasurer, but later designated himself deputy treasurer on March 9, 2018, after he hired Jhanet Garcia, a certified public accountant who handled accounting matters for his family, to serve as the campaign’s treasurer.

As a candidate for elected office, Mirabal was required to regularly file campaign finance reports with the Miami-Dade County Elections Department. He was required as the candidate, and as the treasurer of his campaign through March 9, 2018, to certify the correctness of each report filed. See § 106.07(5), Fla. Stat. (2017). Mirabal personally reviewed and certified each of his campaign’s monthly reports using his own unique PIN signature code.

Though he certified each report as correct, the referee found that Mirabal’s campaign finance reports were riddled with material errors about his campaign’s finances, many of which were likely timed to be politically beneficial to his campaign The most significant reporting errors occurred during the candidate qualifying period, where, just before switching races from group 18 to group 43, Mirabal made a series of amendments to his campaign’s reports that made it appear to the public and others in the race as though he had a larger campaign account balance and was a much better funded candidate than he actually was. After the qualifying period ended, and when a smaller campaign account balance was less detrimental to his campaign, Mirabal amended the reports to decrease the balance of his campaign account.

For example, on the evening of March 8, 2018, just before he switched races from group 18 to group 43, Mirabal amended his January 2018 report to add $196.80 in collected cash and checks, and reported the campaign cumulative total as $46,278.26. Forty-three minutes later, he amended his November 2017 report to rereport cash, check, and loan amounts in the amount of $5,551.46, essentially doubling those amounts for a campaign cumulative total of $51,829.72. Then, thirteen minutes later, Mirabal amended his February 2018 report to add $3,000.00 in in-kind contributions and to re-report a $20,000.00 loan to himself, which like the other re-reported amounts, doubled the actual amount of the loan. At this point, Mirabal’s cumulative campaign total was $71,829.72, which did not match the amount actually in his campaign account.

Then, minutes after the qualifying period ended at noon on May 3, 2018, Mirabal amended his November 2017 report to delete the doubled $3,130.00 in cash and checks, and to delete a $3,421.46 purported loan from himself, lowering the cumulative total of the campaign account to $69,278.26. Ten minutes later, Mirabal amended the January 2018 report to delete a $10,000.00 purported loan from himself, lowering the cumulative total of the campaign account to $59,278.46. In deleting the loan amount from the report rather than amending it or placing it on another report, the referee found that Mirabal basically recognized that the loan did not actually occur and that he had no basis to record it. And finally, sixty-two minutes later, Mirabal amended his February 2018 report to delete the doubled $20,000.00 purported loan from himself, lowering the cumulative total of the campaign account to $39,278.26.

Based on the numerous material errors in Mirabal’s monthly campaign finance reports, the Florida Elections Commission (FEC), in a consent order dated February 26, 2019, found Mirabal in violation of section 106.07(5). The FEC ordered Mirabal to pay a $2,000.00 fine. When asked at the final hearing to explain the high volume of material errors in his campaign reports, Mirabal stated that the errors were the result of him mistakenly filling out forms with which he was unfamiliar. The referee found Mirabal’s explanation untruthful. He noted that Mirabal, who has served as the closing agent on numerous real estate transactions, was not unfamiliar with reporting financial matters on forms and with ensuring the accuracy and completeness of such forms.

Mirabal also claimed that he had until the end of the campaign to amend and correct his financial reports. The referee rejected this argument, finding that that was true for errors he may not have been aware of until the end of the campaign. But Mirabal was well aware of the errors in his campaign’s finance reports when his campaign was ongoing and he had a duty to correct the reported balances before certifying in subsequent reports that the reported total was correct.

The referee ultimately found that the errors in Mirabal’s campaign finance reports were too numerous and far too politically advantageous to be a mere accident. He concluded that Mirabal knowingly and repeatedly certified the over-inflated numbers in his campaign finance reports as accurate, allowing them to go uncorrected during the period when other candidates could enter the group 43 race for judicial office. The referee, thus, recommends that Mirabal be found guilty of violating rule 4-8.4(c) ("A lawyer shall not … engage in conduct involving dishonesty, fraud, deceit, or misrepresentation …. ").

The 2019 JNC Application

In April 2019, Mirabal filed an application with the JNC seeking appointment to a county court judgeship. He certified at the end of his JNC application that he had "read the foregoing questions carefully and ha[d] answered them truthfully, fully and completely."

Question 38

Question 38 of the JNC application asked whether Mirabal had "ever been a party to a lawsuit either as a plaintiff or as a defendant." If the answer was in the affirmative, the application directed Mirabal to identify the jurisdiction where the lawsuit was filed, the style of the case, the case number, the nature of the lawsuit, whether he was a plaintiff or defendant, and the case’s disposition.

In answering question 38, Mirabal failed to list six lawsuits in which he was a party. Mirabal claimed that he filled out the application from memory, and that the cases were negligently omitted from his application. The referee found Mirabal’s explanation that he simply "forgot" about the six cases was not credible, particularly given that the omitted lawsuits contained negative comments and findings about Mirabal that would cause the JNC to look unfavorably on his application.

For example, in Federal Deposit Insurance Corp., as Receiver for Indymac Bank, FSB v. Miguel F. Mirabal & Global Title, LLC, Mirabal was accused of fraud and breach of contract after he purportedly failed to follow the lender’s instructions while acting as a closing agent. Mirabal ultimately settled the case and agreed to testify against others involved in the fraud. The referee found that it was "impossible to believe" that Mirabal would simply forget a lawsuit of this nature and result.

Another example is Miguel F. Mirabal v. Bank of America Corp., a lawsuit Mirabal initiated in Miami-Dade circuit court. Though he disclosed the case’s existence on his JNC application, Mirabal misrepresented its disposition. He claimed:

This was my lawsuit as Plaintiff for a property/mortgage against Bank of America and Countrywide Home Loans, after I detected irregularities with the loan. After several years of litigation we finally settled in June 2016 with a short sale of the property.

However, Mirabal failed to disclose that the case was removed to federal court, where his claims were dismissed with prejudice for misrepresentations of fact and failure to state a claim. The case stemmed from Mirabal’s attempt to avert foreclosure proceedings on property he owned. In July 2008, Mirabal drafted and executed a "Quit Claim Deed in Lieu of Foreclosure" that stated it was prepared by the Bank of New York. Unaware of Mirabal’s actions, the Bank of New York recorded a lis pendens against the property in October 2008. Mirabal then recorded the quit claim deed he prepared in December 2008, and he initiated the circuit court action against the bank and its...