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Florida Bar v. Cohen11/23/2005
Original Proceeding - The Florida Bar
The Florida Bar seeks review of a referee's report recommending a thirty-day suspension, offset by credit for time served pursuant to a criminal incarceration, and a three-year probationary period. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we approve the referee's findings of fact and recommendations as to guilt, but reject the referee's recommended discipline. The serious nature of Marc B. Cohen's misconduct, as well as both the actual and potential harm and danger he presented, warrant a ninety-day suspension followed by three years' probation.
BACKGROUND
Attorney Cohen was arrested in August 2002. He subsequently pled nolo contendere to a felony marijuana possession charge and five misdemeanor counts, which included driving under the influence , possession of drug paraphernalia, fleeing and eluding officers, resisting arrest without violence, and reckless driving. The circuit court entered an order adjudging Cohen guilty on the driving under the influence charge and withholding adjudication on the remaining charges, including the felony marijuana possession charge. The circuit court sentenced Cohen to thirty days in jail, with one year of drug-offender probation, followed by two years of probation. Cohen was also required to perform 100 hours of pro bono legal services and 50 hours of community service, pay fines, and relinquish his driver's license for six months.
The Florida Bar instituted disciplinary proceedings under rule 3-7.2(e) of the Rules Regulating the Florida Bar, the felony suspension rule. Following a formal hearing, the referee issued his report in which he found Cohen's plea to the criminal charges was "conclusive proof of guilt." The report also referred to specific pages of the hearing transcript containing the testimony of the trooper who investigated the incident which gave rise to Cohen's arrest and criminal charges.
The trooper testified Cohen was driving seventy to ninety miles per hour, intoxicated, in the wrong direction on Interstate 95 when given chase by the police. At first, Cohen failed to stop. An oncoming innocent driver had to swerve his vehicle to avoid being hit, struck another vehicle, and hit a cement barrier. The innocent drivers of the other vehicles were taken to the emergency room and both of their vehicles were damaged. Eventually, Cohen stopped and exited his vehicle, but failed to respond to the trooper's repeated commands to stop or turn around. He was brought under control only through forceful restraint. He refused to submit to a breathalyzer, and when his car was searched, the trooper discovered seventy-one grams of marijuana, a pipe, and an extensive amount of drug paraphernalia.
As to rehabilitation and aggravating and mitigating factors, the referee found Cohen clearly and convincingly established his rehabilitation, having traveled great lengths to turn his life around and to rehabilitate himself after his August 2002 arrest. The referee found there were no "applicable" aggravating factors, but found ten mitigating ones, including: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith efforts to rectify the consequences of his misconduct; (5) cooperative attitude toward the proceedings; (6) character or reputation; (7) physical or mental disability or impairment; (8) interim rehabilitation; (9) imposition of other penalties or sanctions; and (10) remorse.
As to discipline, the referee found Cohen had refrained from the practice of law for the twenty-eight days of his incarceration, as would be obvio
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