IN THE SUPREME COURT OF FLORIDA (Before a Grievance Committee) THE FLORIDA BAR, Complainant, TFBNo. 2005-10,537(13A) v. STEPHEN M. KUNZ, Respondent. REPORT OF MINOR MISCONDUCT AND ADMONISHMENT I. Committee Recommendation: Pursuant to Rule 3-7.4(m), the committee recommends that the respondent receive an admonishment. The admonishment shall be issued by service of this report on the respondent. The committee notes that the respondent is not certified in any area of practice. II. Comment on Mitigating, Aggravating or Evidentiary Matters; The committee believes that the following comment on mitigating, aggravating and evidentiary matters will be helpful in considering acceptance of the report: The Florida Bar initiated the above-referenced Inquiry / Complaint based on reported allegations of prosecutorial misconduct in United States v. Aisenberg, et al. (M.D. Fla,). Respondent, a seasoned prosecutor with more than twenty years experience, was the lead attorney on the case. The U.S. Department of Justice, Office of Professional Responsibility (OPR), conducted an exhaustive investigation of the judicial criticism of the prosecution, and eventually provided this office a confidential and redacted copy of the Report of Investigation. OPR concluded that the Aisenberg prosecution was not vexatious, frivolous, or undertaken in bad faith. OPR further concluded, however, that Respondent had committed professional misconduct under standards that govern federal prosecutors. Specifically, OPR found that Respondent acted in reckless disregard of his obligation to refrain from: (1) including in the indictment excerpts of tape recording transcripts that were extremely inflammatory and prejudicial, but not sufficiently reliable or relevant; and (2) inflaming the grand jury against the Aisenbergs. The OPR disciplinary proceeding was disposed with a two day suspension that Respondent was allowed to serve on a Saturday and a Sunday. The grievance committee's recommendation is based on a review of the record presented PUBLIC RECORD and its consideration of relevant aggravating and mitigating factors. The committee also noted that Respondent acted under the direction of his supervisors, several of whom had reviewed the indictment before it was filed. In mitigation, the committee considered Florida Standards for Imposing Lawyer Sanctions, 9.32(a) absence of a prior disciplinary record and 9.32(k) imposition of other penalties or sanctions. The only aggravating factor present is 9.22(i), substantial experience in the practice of law. Nature of Violations: Rule 3-4.6, Rules Regulating The Florida Bar, which provides: "A final adjudication in a disciplinary proceeding by a court or other authorized disciplinary agency of another jurisdiction, state or federal, that an attorney licensed to practice in that jurisdiction is guilty of misconduct justifying disciplinary action shall be considered as conclusive proof of such misconduct in a disciplinary proceeding under this rule." III. The following itemized costs of these proceedings are assessed against the respondent: Administrative Costs, (Rule 3-7.6(o)(l)(I) $1,250.00 IV. Committee Vote: A quorum of not less than three members of the committee being present, one of whom must be the chair or vice chair, and another of whom must be a lawyer member, the committee by affirmative vote of a majority of the committee present, voted in favor of the committee recommendation stated in Item I above. In accordance with Rule 3-7.4(g), the committee reports the number of committee members voting for, or against this report as follows: For » Against Voted this 19th dav of July. 2005. THIRTEENTH JUDICIAL CIRCUIT GRIEVANCE CQMMITTE! Dated: • ,f I jUr^f J If r f \tff ^mit ~~~/Joseph rf. Varner, III, Chair f Kj/opik Vamer Moore 1 406 S. Morgan Street \^Tampa, Florida 33602-5434 813-221-3131 Attorney No. 394904 PUBLIC RECORD APPROVED BY: Dated: Gwynnc ^Ifce Young, Desi; Carlton Fields, PA P. 0. Box 3239 Tampa, Florida 33601-3239 813-223-7000 Attorney No. 185582 PUBLIC RECORD