‘Willful ignorance’ is part of why a Coral Gables lawyer got suspended for a year

Ignoring all signs that a client lied on an affidavit on which a lawsuit was based will cost a Coral Gables attorney a year of his professional life.

Leo Benitez of Benitez & Associates starts his one-year suspension Aug. 19.

The state Supreme Court acted on the punitive recommendation from the discipline case referee, Judge Bertila Soto.

Soto wrote in the referee’s report, when given a chance to check out certified court records that would have halted matters, Benitez “testified that he failed to review the records, put his head in the sand and engaged in willful ignorance, letting his close relationship with Mr. Kasinsky cloud his judgment.”

Benitez has been a member of the Florida Bar since 1989.

A Colombian arrest, a Miami resident and Coral Gables attorneys

What follows is from the referee’s report.

Roberto Kasinsky went to attorney Richard Diaz for help after Kasinsky’s brother-in-law, Jorge Dario Montoya, and another person were arrested in Colombia in 2007. Diaz told Kasinsky he isn’t licensed there, but he could refer Montoya to the firm of Casallas, Suarez, and Rincon (CSR) and facilitate paying that firm’s $100,000 retainer.

While working on Montoya’s case, CSR got him out of jail and into house arrest. That triggered a bonus payment to CSR.

“Following his release to house arrest, Montoya determined that he did not wish to pay the bonus legal fees. He terminated CSR’s representation, and hired new counsel,” the report and the formal Bar complaint said.

Kasinsky demanded Diaz return the $100,000 retainer. He claimed he’d retained Diaz to represent Montoya, and he didn’t know Diaz wasn’t licensed in Colombia or anything about another law firm. Diaz said if he wanted a refund, he needed to talk to CSR, with whom he had a representation agreement.

Enter Benitez, as Kasinsky’s attorney, in September 2009. After Diaz dismissed Benitez’s demand letter for the $100,000, Benitez filed suit on Kasinsky’s behalf in Miami-Dade Circuit Court on Dec. 29, 2009.

Affidavits, true and fugazy

From the referee’s report and Miami-Dade online court records:

Diaz’s 2011 attempt at ending Kasinsky’s case by summary judgment died against the factual questions raised by what court documents called “The Montoya Affidavit.”

In the affidavit, Montoya says he never spoke with Diaz, Suarez or Rincon about his defense and never retained them.

Diaz’s 2013 try for summary judgment included an affidavit from CSR describing its actions in representing Montoya as well as copies of emails between Kasinsky and CSR with deep dive discussions of Montoya’s case. Montoya stuck to his story, claiming an attorney named Pizza Parra got him out on house arrest.

By 2016, Diaz was able to get actual Colombian court documents showing CSR’s work on the case. Also, there were Colombian powers of attorney for CSR that included the signatures and thumbprints of Montoya and his fellow arrested party. Diaz let Benitez know these documents existed, offered to show boxes of them to his fellow Coral Gables attorney and requested a voluntary dismissal of the case.

“Nevertheless, [Benitez] declined to view the documents and continued to press his case,” the referee’s report said.

That case ended when Miami-Dade Circuit Court Judge John Schlesinger granted summary judgment after seeing the documents from Colombia that rebutted the Montoya Affidavit. The case was dismissed with prejudice.

“The Montoya Affidavit is at the heart of the allegations in the plaintiff’s case,” Schlesinger wrote.

That’s not all he wrote.

“This case presents precisely the sort of fraud upon the court that Florida common law finds to be the most egregious and worthy of the ultimate sanction,” Schlesinger wrote. “The court, however, makes no finding at this juncture that [Benitez] knowingly perpetrated a fraud upon the court.”

Judge Miguel M. de la O, in finding Benitez and Kasinsky liable for bad faith sanctions, excoriated Benitez similarly.

“By this point, if not earlier, Mr. Benitez had obviously erected a “wall of willful ignorance” regarding information adverse to Plaintiff’s position,” de la O wrote. “Faced with actual Colombian court records, Mr. Benitez had a duty to do more and he breached that duty. By March 30, 2016, if not earlier, this breach was equivalent to bad faith and the Court finds that by March 30,2016 Mr. Benitez knew or should have known that the Montoya Affidavit was a perjury.”

Benitez still didn’t acknowledge it to the Bar investigators.

“He argued his use of the Montoya Affidavit was proper, because it was supported by his client’s continued denials of the evidence put forth by Diaz,” the Bar complaint said. “[Benitez] continued to assert to the bar, despite the contrary certified Colombian court records, that it was Mr. Pizza Parra, and not CSR, that represented Jorge Dario Montoya in Colombia and secured his release from incarceration.”

Benitez’s song didn’t remain the same in front of Soto. But by then, the damage to everyone’s time — and Benitez’s career — had been done.