IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Complainant, Case No. (SC15-1100) i TEB File No. 2015-00,141 (8A) WILLIAM RICHARD EZZELL, Respondent. / REPORT OF THE REFEREE 1 SUMMARY OF PROCEEDINGS Pursuant to an order of the Supreme Court of Florida dated Tuesday, June 16, 2015 and subsequent order appointing referee by Circuit Court Judge Greg Parker, Chief Judge of the Third Judicial Circuit, dated June 18, 2015, this referee, Mark E. Feagle, Circuit Judge (hereinafier “Referee”), was assigned to hear the matter of The Florida Bar (hereinafter “the Bar”) vs. William Richard Bzzell (hereinafter “Ezzell” or “Respondent”); in accordance with Rule 3-7.6, Rules Regulating the Florida Bar, counsel for the Florida Bar was James K. Fisher, Esquire, and counsel for Ezzell was Rod Smith, Esquire. On May 19, 2015, Senior Judge William R. Slaughter, Il, entered judgement against Ezzell accepting Ezzell’s plea of nolo contendere of Video Voyeurism, a third degree felony. Judge Slaughter withheld adjudication of guilt. On or about June 15, 2015, the Florida Bar filed its Notice of Determination or Judgment of 1Guilt against Ezzell. On Tuesday, June 16, 2015, the Supreme Court of Florida ordered Ezzell suspended from the Florida Bar pursuant to 3-7.2 (f), of the Rules Regulating the Florida Bar. The Supreme Court of Florida further ordered that the suspension shall be effective thirty (30) days from the date of said order to permit Respondent to close out his practice and protect the interest of existing clients. On Monday, August 10, 2015, a final hearing was held for purposes of determining the proper recommendation of sanctions to the Supreme Court of Florida. The one (1) day hearing was heard by the undersigned Referee and all items properly filed, including pleadings, recorded testimony (if transcribed, and by way of CD of the live testimony), exhibits in evidence, and the report of referee constitute the record in this case and are forwarded to the Supreme Court of Florida. IL. FINDINGS OF FACT Jurisdictional Statement. Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida, B. Narrative Summary of Case. Since Ezzell previously entered his plea of no contest and judgment was rendered on May 19, 2015, this Referee, unless otherwise requested by the Supreme Court of Florida will not go into detail regarding the specific facts of Ezzell’s felony charge. Following brief opening statements, aggravating and mitigating evidence was presented to the Referee via live testimony and written statements. As a result of the previous plea and judgment as referenced herein, there was virtually no testimony or evidence regarding the crime of video voyeurism and no specific facts were presented. Ezzell made it very clear from the onset, that he was not going to put on a defense to the alleged crime and he had nodesire to put the alleged victim through any additional embarrassment or to bring any further public attention to her as a result of his actions. Ezzell took full responsibility for his actions. After brief opening statements by bar counsel and Ezzell’s attorney, Ezzell presented his case, consisting primarily of “character testimony” from a variety of witnesses including five sitting judges, the State Attomey of the Eighth Judicial Circuit, the Alachua County Clerk of Court, attorneys either in private practice, the State Attorney’s Office, or the Public Defender’s Office, and finally Ezzell and his wife. In addition to the live testimony Ezzell presented letters from thirty two (32) individuals, all of whom made it very clear they have a great deal of respect for him and hold him in high regard. This Referee makes specific findings that each and every witness that testified at this final hearing were credible witnesses, and at least fifteen (15) of the eighteen (18) witnesses were officers of the court. The first witness to testify was Stacey Steinburg, Esquire. Currently she is a University of Florida College of Law Professor and has been a member of the bar since 2004. She previously worked with Ezzell at the State Attorney's office and knows Ezzell on a personal and professional level. Ms. Steinburg testified on Ezzell’s behalf and bragged about how he is known as “Coach Ezzell” to her minor children. This is a result of Ezzell coaching her son’s first t-ball season. Steinburg testified that while she was employed with the State Attorney’s office, and even after, she contacted Ezzell and sought his advice on a regular basis. She states that following these allegations, Ezzell offered to stop coaching the children but each and every one of the parents voted to keep him on as their child’s coach. She believes this was a true testament to his character as well as evidence of the faith each parent had in Ezzell. Steinburg indicated that Ezzell was very diligent at hisjob and he was an advocate for justice who treated everyone with respect, including victims and defendants. Next to testify was Judge David P. Kreider, Eighth Judicial Circuit Court Judge. Judge Kreider testified he worked with Bill Ezzell from his days at the State Attorney’s office and that Ezzell has practiced in front of him. Judge Kreider testified Ezzell is very intelligent and the opinion among the judges in the Fighth Circuit was that Ezzell was a very ethical attomey and one of, if not the top attorney in the Eighth Judicial Circuit. Judge Kreider indicated he would be comfortable with Ezzell coming back to the practice of law and he would be an asset to the legal community once again. On cross, when Judge Kreider was asked if this criminal act and subsequent plea reflected poorly upon the profession, Judge Kreider answeted yes. However, Judge Kreider went on to say that although Ezzell made a really bad decision, he should be given a second chance. He further stated that his professional life and personal life are in fact very different. That Ezzell and his family have grown up in Gainesville, Florida and have worked very hard to advance to where there are today. Judge Kreider considers this an isolated incident. Next we heard from witness Craig DeThomasis, a criminal defense attorney in the Eighth Circuit who has been a member of the bar for approximately 32 years. Mr. DeThomasis testified that Ezzell was one of the attorneys in the State Attorney’s office that he felt comfortable with showing his hand and being completely open and honest when discussing his defenses and strategies prior to trial. He testified Ezzell was not the type attomey who would withhold valuable information or use trickery upon defense attomeys. Mr. DeThomasis testified Ezzell was always fair and open minded when dealing with defendants when recommending punishments. Mr. DeThomasis further testified that Ezzell’s goal was to always get to the truth, he never had any Brady concerns with him, and he isa very high ranking attorney among the defense bar. Mr. DeThomasis testified Ezzell is a very valuable asset and is highly respected as a skilled attomey with respect to his trial skills and his ethical obligations. Mr. DeThomasis believes that a ninety (90) day suspension would be appropriate and he believes the legal community would accept Ezzell with open arms. On cross examination it was made clear that attormey DeThomasis has previously served on the grievance committee for at least two terms and is a certified CLE lecturer on ethics and professionalism. Also on cross, DeThomasis made it clear that just because he’s entered a plea doesn’t necessarily mean that his innocence can be excluded. Pleas are sometimes entered as a matter of convenience for all involved, including the victim. Mr. DeThomasis further stated “I don’t think this is necessarily a black eye on the legal profession.” Of further interest to the undersigned referee, attorney DeThomasis stated that while he was not fully aware of all the facts of Ezzell’s criminal case, he believes this matter can be addressed and the issues can be fixed ifhe takes the necessary steps. In fact, he testified that it would likely make Ezzell a stronger person. Judge Colaw, Circuit Court Judge in the Eighth Judicial Circuit testified he has known Bill Ezzell for quite some time, that he produced great quality work as an assistant state attorney and he was the lead prosecutor in the Pedro-Bravo Murder trial in which conviction was rendered. He says the opinion among the judges of the Eighth Circuit was that Ezzell is one of the finest attomeys in the Eighth Circuit, even the State. Judge Colaw had no concer with Ezzell being reinstated to the practice of law. IK. “Buddy” Irby, Alachua County Clerk of Court for the past twenty three (23) years testified he has known Evzell for over twenty nine (29) years as he was neighbors with the Ezzell family and watched him grow up from a mere child. He testified his boys grew up with Ezzell and Ezzell was not only a fine lawyer but awonderful family man who is a rising star in this community. He further agreed that Mr. Ezzell should be reinstated to the Florida Bar. Next we heard from Judge James T. Browning, Levy County Court Judge. Judge Browning stated he supervised Ezzell and evaluated Ezzell while he was with the State Attorney’s office. Judge Browning holds Ezzell in very high regard and has seen him deal directly with women and children who are victims of crimes. He testified Ezzell knew how to deal with women and children and to make them feel comfortable. He opined that Ezzell was one of the best assistant state attomey in the Eighth Circuit when this incident occurred. Judge Browning further testified that he supported Ezzell and recommended him for a judicial appointment, and he thinks he will be an asset to the bar again upon reinstatement. He further testified that Ezzell he has helped a lot of people, he is very smart and compassionate, and he can be an asset to the State of Florida and its’ citizens. During cross examination Judge Browning discussed the fact Ezzell had been publicly excoriated because he has lost his chance at judicial appointment, he has lost his division chief job at the State Attomey’s office, and he is currently without his bar license. Judge Browning believes with the proper help and treatment, and upon appropriate release from the appropriate professionals, Ezzell should be reinstated. Next we heard from Assistant State Attorney Omar Hechavarria, who has been an assistant state attorney for the past twenty seven (27) years. Mr. Hechavarria says he worked very closely with Ezzell and he knew him on both a personal and professional basis. Mr. Hechavarria made it very clear that Ezzell’s goal when prosecuting cases was justice over victory, he wanted to ensure justice was served for all parties involved. He further explained how Ezzell set up a program to allow first time DUI offenders, specifically college kids, different options in dealing with their charges. Mr. Hechavarria states Ezzell is highly respected by other attorneys and he cannot recall ever hearing a poor comment 6about Ezzell, even from the defense bar. Mr. Hechavarria believes a ninety (90) day suspension is the appropriate sanction and that Ezzell can reestablish himself in the community as being a respected attorney. Mr. Hechavarria further pointed out that we should look at the individual person, and do as Ezzell did, and that is, justice, essentially to take the matter on a case by case basis. The next witness was Canaan Goldman, Assistant Public Defender in the Eighth Judicial Circuit, a member of the bar since 2000. He is currently a felony division chief and worked approximately four to five years against Ezzell Goldman testified Ezzell was an ethical attorney, who sought justice for all. He testified Ezzell always kept in mind that there were two sides to every story and he ‘wanted to know the defendants’ side too. Mr. Goldman testified that if Ezzell is not reinstated it would be an extreme loss to the bar. On cross, Mr. Goldman stated that everyone should be treated individually, on a case by case basis and that Ezzell had done a lot of things for the criminal bar such as bringing the public defender and state attorneys divisions together for lunch and other communication events, and that should be considered. Judge James P. Nilon, a Circuit Judge in the Eighth Judicial Circuit recognized Ezzell was not an overbearing prosecutor, and one who treated everyone with respect and fairness, He acknowledged he had great legal skills and was a great prosecutor. Judge Nilon went on to further state that Ezzell’s reputation among the bench was very good, he was skillful, he was held in high regard, and he was professional and appropriate. Judge Nilon testified that if there is an underlying issue, people can get help. If Ezzell has recognized this issue and ifhe has corrected it, he can overcome it and be a thriving member of the bar once again. On cross, Judge Nilon said we have to look at the whole picture, that Ezzell should not be lumped in as one of the “bad apple attorneys”; that we should factorin the good deeds that Ezzell has done throughout his personal and professional career. Next we heard from attorney Mare Peterson, Assistant State Attomey for the past twenty six (26) years. Currently Mr. Peterson is a felony division chief. Mr. Peterson stated he first met Ezzell when Ezzell was an intern, and very quickly recognized Ezzell was very up to date with the law and a great resource to the State Attorney’s office. Mr, Peterson states Ezzell is highly regarded within the State Attorney’s office and the bar in general, and noted how quickly Ezzell moved up the ladder. He attributes that to Ezzell’s intelligence, respectfulness, fairness, and the fact he is seeking justice. Mr. Peterson further stated he had no reservation about Ezzell’s reinstatement and Ezzell has paid the price and has been punished enough at this point. Of interest, Mr. Peterson made it very clear Ezzell is very remorseful, He stated Ezzell took responsibility for his actions immediately and he made it very clear to Peterson that he wanted his two sons, once they become of appropriate age, to know their father lived up to his mistake and did not try to beat the system and dodge this mistake. Next we heard from Union County Judge Bo Bayer. Judge Bayer confirmed he worked at the State Attorney’s office for sixteen (16) plus years and he knew the defendant as a fellow assistant state attorney. Judge Bayer recognized the fact Ezzell was extremely bright and diligent in his works and discussed that he would actually call upon Ezzell for advice on certain issues. He stated Ezzell is very well respected and he would be comfortable with him being readmitted to the bar. Judge Bayer acknowledged we give others second chances and Ezzell should receive a second chance too. Witness twelve was William Cervone, State Attorney of the Eighth Judicial Circuit. Mr. Cervone bragged on Ezzell’s ethics and quality of work. Mr. Cervone indicated and discussed how extremely shocked he was when he heard of the 4charges against Ezzell, and this was extremely out of character for Ezzell. Mr. Cervone acknowledged while Ezzell-was an Assistant State Attomey with his office, he put him in a leadership role and made sure he was co-counsel on one of the highest profile cases in the Eighth Circuit, Mr. Cervone indicated Ezzell has already paid a high price, that what he did is unrelated to his ability to practice law and is unrelated to his ethical standards. Mr, Cervone indicated he would be very comfortable with Ezzell’s re-admittance to the bar. As with others, Mr. Cervone agreed that such actions reflect poorly on the legal community and punishment should be rendered. Mr. Cervone made it clear though, that when the punishment is rendered, keep in mind that this is different from client mistrust issues. This was an incident that occurred during his personal time and was not related to his professional life. Next we heard from Jeanne Singer, Chief Assistant State Attomey with the Eighth Judicial Circuit. Ms. Singer indicated she maintained daily contact with Ezzell and he is an extremely ethical attorney and showed a deep interest for the victims of crimes. She states he went above and beyond the prosecutorial role, he followed the rules, and younger attorneys looked up to him and sought his advice. She further testified Ezzell always advised the other attomeys to take the high road when there was a discovery or other related issue. Ms. Singer indicated she had no concern if Ezzell was reinstated and this will only make him a better lawyer. He has now “been on the other side, that of a defendant.” Ms. Singer further testified she has been a member of the grievance committee on two separate occasions. Ms. Singer also indicated that this matter happened during Ezzell’s personal time and this was not a professional mistake that would affect verdicts or jeopardize the prosecution of cases and victims’ rights. Our next witness was Lua Lepianka, an Assistant State Attorney since May of 2003. Ms. Lepianka testified Ezzell is one of the most ethical people she has °ever met, She indicated while he was prosecuting cases he recognized that people’s lives were at stake and that he took all of his cases serious. Ms. Lepianka testified Hzzell always treated opposing counsel with complete and utter respect, regardless of their arguments, and she believes Ezzell should be reinstated to the practice of law. Ms. Lepianka went on further giving an example of how a fourteen (14) year old victim was encouraged by Ezzell and was able to muster the strength to testify to the court during a defendant’s sentencing. She bragged that this fourteen (14) year old girl was only able to do this as a result of Ezzell’s compassion and guidance. Ms. Lepianka also believes each case should be reviewed on a case by case basis and to remember and acknowledge Evzell’s remorse and his willingness to take responsibility. Ms. Lepianka further stated the only thing Ezzell loves more than the law is his family and the public will be well protected with him as a lawyer. Our next witness was Nick Zissimopulos, a criminal defense attorney who has been a member of the Florida Bar since 2003 and is a University of Florida, College of Law adjunct professor. Mr. Zissimopulos is board certified in criminal trial law and took the opportunity to brag on Ezzell with respect to Ezzell’s fairness, honesty and intellect. Mr. Zissimopulos states Ezzell treated the entire defense bar fairly and honestly and always made full and complete disclosures and Ezzell was not about tricks or deception. Mr. Zissimopulos testified he would be comfortable with Ezzell receiving a ninety (90) day suspension and being reinstated to the bar. He further stated Ezzell is too good not to be a lawyer in our community, this was out of character for Ezzell, and that he would trust Ezzell around his wife and/or his children. When asked on cross examination how this would affect the perception of the legal community, Mr. Zissimopulos stated “I think it helps the profession when a lawyer takes responsibility and acknowledges his faults versus thinking he is above the law.” ryOur next witness was Robert Rush, an attorney who has been a member of the Florida Bar since 1985. Of significance, Mr. Rush has been a member of the Board of Governors from 1999 through 2005 and he is very active in the Eighth Circuit Bar Association and with its committees. He has been a Board of Governors designated reviewer and he is very familiar with the sanctions and punishments handed down to attorneys. Mr. Rush acknowledged that Ezzell is a problem solver who resolved cases, and he was always a man of his word. Mr. Rush acknowledged that this incident occurred on Ezzell’s private time and there was no lying, cheating, or stealing from clients; that Ezzell owned up to his wrong doings and took full responsibility for his actions. Mr. Rush indicated that the Board, when reviewing grievances, should, and does look to past conduct. Mr. Rush states that it is very important to recognize that past conduct is a good indicator of future conduct. As such, he is very comfortable with stating that a ninety (90) day suspension is an appropriate sanction for Mr. Ezzell and that if his past conduct is any indication of his future conduct, he will continue to be an asset to the legal community. The final two witnesses were Tara Ezzell and the Respondent. Mrs. Ezzell made it very clear that she was standing by her husband. She testified they have two sons and that her husband is a loving and caring husband, father, and family man. She says the law means everything to Ezzell, second only to his boys and to his family. Mrs. Ezzell discussed how much time and commitment Mr. Ezzeli puts into his work, and his travel baseball team as head baseball coach for these young kids and that he teaches all of the children teamwork, sportsmanship, and holds each of them accountable. Mrs. Ezzell wants to see her husband receive a second chance and says her Husband’s inability to practice law is a loss to the legal profession and to the community found within the Eighth Circuit. Mrs. Ezzellstated that immediately following this incident they sought the advice of their family physician and from Dr. Doris B. Styles-Glazer, PhD. Mrs. Ezzell says that once the counseling sessions began, both individually and as a couple, that they have continued to see Dr. Styles on a weekly basis and will continue to do so. Mrs. Ezzell says her husband has learned from this situation and he has become stronger because of this situation and as a result, he will be a better lawyer, and he is ready to go back to the practice of law. She states he knows that he has to eam the respect of all once again. Mrs. Ezzell further discussed the embarrassment this incident has rendered on Ezzell and their entire family and discussed the newspaper articles, phone calls to their home, and the fact he has to face the public, including his baseball family and church family. She believes he has suffered enough and he continues to punish himself on a daily basis. The respondent, William Richard Ezzell, was the final witness at this hearing. Mr. Ezzell testified about how he met his wife, how he became a lawyer, and showed great emotion when he discussed the fact he received an award from the University of Alabama for his pro-bono services. Mr. Ezzell said that being a lawyer “is who he is” and it is extremely important to him, second only to being a father and a husband. On cross examination, Mr. Ezzell testified he tried to preserve the image of the Eighth Judicial Circuit State Attorney’s office by immediately accepting responsibility, immediately resigning his post as assistant state attomey, and apologizing at the appropriate time. Mr. Ezzell indicated he wants a second chance and he knows this will never happen again and this will only make him a better lawyer. In addition to the live witness testimony, Dr. Doris B. Stiles-Glazer, PhD, submitted a letter that discusses the steps Ezzell has taken in an effort to address any underlying concems. The letter, also filed with this report, discusses the evaluations and testing conducted in order to properly diagnose and treat Ezzell. 2She indicates the incident did not arise out of any sexual motivation, but rather due to an impulsive reaction due to anxiety about being in a tanning salon without his wife’s consent. It is important to know that his wife is a Dermatologist and has strong feelings opposing tanning beds. Dr. Stiles-Glazer opines that Ezzell has made very positive changes during his treatment and that he is ready to return to his legal career and he is psychologically fit to practice law. Ill. RECOMMENDATIONS AS TO GUILT I recommend that Respondent be found guilty of violating Rule 4-8.4(b) of the Rules Regulating the Florida Bar. IV. CASELAW I considered the cases submitted by counsel prior to recommending discipline. It is clear that there is no specific case on point as it relates to the facts of this particular incident. V. AGGRAVATING AND MITIGATING FACTORS (considered) Prior to recommending discipline, I considered the following: Mitigating Factors: 1.) 9.32(a) Absence of a prior disciplinary record; 9.32(b) Absence of dishonest or selfish motive; 9.32(¢) Personal or emotional problems; 9.32(@) Timely good faith effort to make restitution or to rectify consequences of misconduct; 9.32(¢) Full and free disclosure to disciplinary board or cooperative attitude toward proceedings;9.32(g) Character or reputation; 9.32()) Interim rehabilitation; 9.32(K) Imposition of other penalties or sanctions; 9.32(1) Remorse VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that he be disciplined as follows: The Respondent shall be suspended from The Florida Bar for 90 (ninety) days, that Ezzell continue to treat with his counseling psychologist, Doris B. Stiles- Glazer, PhD, LLC, for a period of no less than one year, and to follow any and all reasonable recommendations by Dr. Stiles-Glazer; and that Ezzell pay The Florida Bar’s costs for these disciplinary proceedings. Vil. PERSONAL HISTORY. PAST DISCIPLINARY RECORD Personal History of Respondent: Age: (38) Date admitted to the Bar: September 17, 2002 Prior Discipline: None Vill. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED I find the following costs were reasonably incurred by The Florida Bar: A. — Grievance Committee Level Court Report’s Fees $ 570.00 Bar Counsel Costs $ 185.15Administrative Costs $ 1,250.00 TOTAL $ 2,005.15 It is recommended that such costs be charged to Respondent and that interest at the statutory rate shall accrue and be deemed delinquent 30 days after the judgment in this case becomes final unless paid in full or otherwise deferred by the Board of Govemors of The Florida Bar. Za Dated this_Y" day of September, 201 Mark dae Judge/Referee Third Circuit Post Office Box 2077 Lake City, Florida 32056 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been e-mailed to the Honorable John A. Tomasino, Clerk, Supreme Court of Florida, at ¢[email protected], and mailed to 500 South Duval Street, Tallahassee, Florida 32301; a copy has been e-mailed to James K. Fisher, Bar Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399, ([email protected]); a copy has been e-mailed to Rodney W. Smith, Esquire, Attorney for Defendant William R. Ezzell, 2814 Southwest 13° Street, Gainesville, Florida 32608, ([email protected]); and a copy has been e-mailed to Adria Quintela, Staff Counsel, at her record Bar address, The Florida Bar, Lakeshore Plaza I, 1300 Concord 1, Suite unrise, Florida 33323, ([email protected]), on this_#”*day of ,2015. Tudge Mark ome Referee