D21

Consent Judgment

IN THE SUPREME COURT OF FLORIDA

(Before a Referee)

THE FLORIDA BAR,

Complainant,
Case No. SC02-2430
v.
TFB File No. 2001-00,358(8B)
PAUL D.FRIEDMAN,

Respondent.

Respondent, PAUL D. FRIEDMAN, files this Conditional Guilty Plea for

Consent Judgment pursuant to Rule 3-7.9, Rules of Discipline of The Florida Bar, and

says:

1. Respondent is, and at all times was, a member of The Florida Bar,

subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. Respondent admits that he has violated Rules 4-1.4(b) (Duty to Explain

Matters to Client), 4-1.5(a) (Prohibited Fees), 4-1.7(b) (Duty to Avoid Limitation on

Independent Professional Judgment), 4-1.8(a) (acquiring interest adverse to Client),

former Rule 4-1.15 (Safekeeping Property), 4-5.1(c)(2) (Responsibilities of a

Partner), and 4-5.6(b) (Restrictions on Right to Practice), of the Rules Regulating The

Florida Bar by the following acts:

 a. In 1996, Respondent was a partner and shareholder in the law firm of

Friedman, Rodriguez, Ferraro & St. Louis (hereinafter referred to as FRF&S), with

offices in Miami, Florida.

b. In 1996, the partners and shareholders in FRF&S were Francisco Ramon

Rodriguez (President and managing partner), Diane Deighton Ferraro (Vice

President), Roland Raymond St. Louis, Jr. (Vice President), and Respondent

(Secretary/Treasurer).

c. In July 1996, FRF&S represented twenty (20) plaintiffs in various

lawsuits as well as claims not yet filed against E.I. Dupont De Nemours and

Company, Inc. (hereinafter referred to as "Dupont"), The lawsuits and claims

included claims for damages to nursery and other crops caused by Dupont's allegedly

defective chemical Benlate 50 DF.

d. By on or about July 3, 1996, Respondent's partners entered into

settlement negotiations with Dupont.

e. By on or about July 5,1996, Dupont had proposed to Francisco Ramon

Rodriguez and Roland Raymond St. Louis, Jr. that, in order to settle the cases,

Dupont wanted to be assured that FRF&S would not thereafter represent Benlate

claimants against Dupont. Respondent was informed by his partners that they did not

agree to that proposal.

 f. The aforementioned proposal is prohibited by Rule 4-5.6(b) which states:

"A lawyer shall not participate in offering or

making an agreement in which a restriction on the

right to practice is part of the settlement of a

controversy between private parties."

g. During July 1996, Respondent, as a partner and shareholder, attended

meetings of the partners of FRF&S, at which the status of the Benlate cases was

discussed, including Dupont's proposed restriction on the practice of FRF&S.

h. At a partner meeting it was discussed that Dupont wanted FRF&S

restricted in its future practice from representing clients in matters adverse to Dupont.

In connection therewith, Francisco Ramon Rodriguez assigned a senior associate the

responsibility of performing legal research regarding whether Dupont's proposal was

permissible. Francisco Ramon Rodriguez and Roland Raymond St. Louis, Jr. also

then informed the other partners that they believed a settlement with Dupont for

FRF&S' clients would be reached without any practice restriction agreement having

to be a part thereof. Respondent's response was that in any event the subject matter

did not need to be addressed unless Dupont again raised the matter (and, if so, after

the partners had a chance to review Dupont's position in writing).

 i. At the aforementioned partner meetings, there was sufficient time to

avoid the consequences of the proposed restriction on the right to practice, but

Respondent failed to take reasonable remedial action even though Respondent was

of the belief that any settlement agreement reached with Dupont would not contain

such provision.

j. On or about August 7, 1996, Respondent's partners Francisco Ramon

Rodriguez and Roland Raymond St. Louis entered into a settlement agreement with

Dupont for most of the Benlate claims for approximately 59 million dollars. The

settlement agreement also provided that Dupont would pay $245,000.00 directly to

FRF&S as reimbursement for costs incurred.

k. The aforementioned payment of $245,000.00 was to be received from

someone other than the client and is a prohibited fee.

1. Immediately after entering into the aforementioned settlement agreement

on or about August 8th, 1996, Respondent's partners Roland Raymond St. Louis, Jr.

and Francisco Ramon Rodriguez entered into a secret side agreement with Dupont,

which is set forth by photocopy below:

 . Having completed the negotiation of ----- d
all clour existing Benlate'client., ve^have agreed.„ ^
offer of engagement by E.I. du ponVk/of $6,445,000 (payable in
you have retained us for the agreed fee of $6^4^^^ under
Idvance not later than August 9, 1996, *%££ B to the Settlement
wire transfer instructions; attached at' / ^ ^ t unsoecified work
Agreement dated August^ 7, ™*6J'£*£*££ fitters for additional
or consulting concerning ^t^to^M, ^ommencirig immediately
remuneration at ouret??dard k^1* r* „ behalf of our existing
upon completion of all activities °£ ^n A t o .aid Settlement
Benlate* clients (as identified jn toWW-t A d and that
Agreement). We have agreed that thia fe«^'J* Opportunities that
oSr engagement may require us to forego ^^^/frovided herein,
we would otherwise be free to P«««- 0EOperate7 as»i^ or aid any
we will not engage or participate in, cooperat ^ t d warrant
party in any Benlate'-related-litigation. The un .y s A. ment_
that they have authority to execute this^ rts/ all £f
nay be executed and delivered in ««P™ c ient/ and may be
ceB
which shall constitute one and the same ^rty' obligated to
delivered by facsimile transmission, with pa«y overnight
1 DV to
send a fully executed orig'™ ™ the effectiveness of
courier. Th'is Agreement is
courier. This is contingent upon tne
the -—",- Uement
settlement
-the August 7, 1996 Settlement Agreement^ it it Agreement
Agreement is cancelled or voide* *« fay j£Js 'y claiia Of nor
shall b'e null and void and shall not^give rise ^ ^ t shall be
constitute any basis for disqualification. This A*
maintained in strictest confidence.
MAN, RODRIGUEZ, FEKBAKO
I ST. I£>UIS, P.A.

August

E.I. DO PONT DE NEMOU*S MJO COBPMUr

BY' J2
 m. Respondent had no part in the settlement negotiations with Dupont and

he did not know that his partners had settled the cases and that they had entered into

the secret side agreement until some time after they did it; he was not aware that a

secret side agreement was being negotiated and he was not aware of it until after his

partners had prepared and executed it.

n. Upon signing the aforementioned secret side agreement, FRF&S became

an agent of Dupont and FRF&S was representing both parties to the litigation

simultaneously, thereby creating a conflict of interest.

o. None of the clients were informed about the secret side agreement, nor

that FRF&S was then an agent of Dupont.

p. Subsequent to the signing of the secret side agreement, FRF&S

continued to represent the Benlate clients in an effort to convince them to accept the

basic settlement agreement without telling the clients that they represented Dupont.

Such representation continued through 1997.

q. After August 8, 1996, Respondent became aware of the secret side

agreement and that the clients had not been told about its existence.

r. In 1996, Respondent did not object to his partners about the failure to

inform the clients about the secret side agreement.

 s. Respondent did not inform the clients of the secret side agreement, nor

explain its contents to them.

t. Respondent's exercise of his independent professional judgment was

materially limited by his responsibilities to his partners and to his own pecuniary

interest.

u. On or about August 12, 1996, FRF&S received a wire transfer of

$6,445,000.00 from Dupont in accordance with the secret side agreement.

Respondent, on behalf of FRF&S, accepted the money from Dupont.

v. The aforementioned acceptance of $6,445,000.00 was in violation of

Rule 4-5.6(b) (Restriction on Right to Practice) and is therefore a prohibited fee.

w. On or about August 16, 1996, FRF&S received a wire transfer of

$59,055,000.00 from Dupont for settlement of the Benlate claims.

x. Respondent, on behalf of FRF&F, placed both the aforementioned

amounts received from Dupont in the same trust account at Northern Trust Bank,

thereby commingling FRF&S funds with the clients funds in violation of former Rule

4-1.15 (Safekeeping property), although all funds were duly accounted for.

y. Respondent assisted his partners in preparing settlement closing

statements which included a provision that FRF&S would keep the interest earned on

the clients' funds while being held in the trust account. That provision was not in the
best interest of the clients and FRF&S thereby knowingly acquired a pecuniary

interest adverse to the clients.

z. Thereafter, Respondent accepted his approximately 24% share of the

6.445 million dollar secret side agreement payment, which was in excess of

$1,000,000.00.

aa. By accepting the proceeds of the secret side agreement, Respondent

condoned or ratified its terms and, as a partner, is responsible for the acts of his then

partners Raymond Roland St. Louis, Jr., Francisco Ramon Rodriguez and Diane

Fejraro.

3. As an appropriate discipline for such misconduct, Respondent agrees to

a suspension for ninety (90) days, and to pay restitution to the clients by returning

legal fees which he received in the amount of $910,000.00 by payment to the

plaintiffs in Civil Case No. 98-2781-CA, Division J, Eighth Judicial Circuit, & Civil

Case No. 2000-CA-2704, Eighth Judicial Circuit, as well as to plaintiffs in related

cases brought by former clients, and to pay The Florida Bar's taxable costs of

$7,319.96.

4. Respondent acknowledges that this Conditional Guilty Plea for Consent

Judgment is tendered freely, voluntarily and without fear or threat of coercion.

 5. Respondent acknowledges that he has been afforded all procedural and

substantive due process guarantees regarding these disciplinary proceedings, and that

for the purpose of tendering this Conditional Guilty Plea for Consent Judgment,

Respondent hereby waives any objections relative to the denial of the same.

6. If this plea is not approved by the Supreme Court of Florida, it is of no

effect and neither the plea nor the statements contained herein can be used against

Respondent in any way.

7. Respondent agrees to pay the costs incurred by The Florida Bar in

bringing this action when this Consent Judgment is tendered. If the Supreme Court

does not approve this Consent Judgment, said costs will be returned to Respondent.

8. Had a formal hearing been held, Respondent would have shown the

following mitigating factors under Standard 9.32 of the Florida Standards for

Imposing Lawyer Sanctions:

(a) absence of a prior disciplinary record

(g) character or reputation

(e) Full and voluntary disclosure

(1) remorse - Respondent has admitted the wrongful nature of his acts

and voluntarily took steps to compensate the clients. He has

already paid the restitution of $910,000.00 to clients

 9. Should the Supreme Court of Florida approve this Conditional Guilty

Plea for Consent Judgment, Respondent hereby agrees and acknowledges that same

will not be the subject of future modification.

DATE Paijl D. Friedman, Respondent

1111 BrickelrAve., Suite 2050
Miami, FL 33131-3125
(305) 377-4100
Florida Bar No. 266493

DATE Robert C. Joseist^rg

800 City Natfoaal Bank Building
25 WFlagler Street
Miami, FL 33130-1712
(305) 358-2800
Florida Bar No. 40856

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