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Backed into a corner, Kaplan transferred $10,000 from his election campaign account to his trust account on September 14, 1992, so he could issue a check to Gutierrez and also cover other bills coming in for Topaz.
Although Kaplan replaced the money he had taken from VMG, the impropriety had already been committed. He had floated himself a $7000 interest-free loan for two months from one of his clients, without that client's knowledge or consent. For an attorney, that is an extremely serious offense, one that can lead to suspension or disbarment. It also meets the legal definition of theft, says Assistant State Attorney Joe Centorino. Under Florida law it makes no difference that Kaplan eventually reimbursed his trust account. The act of taking the money without permission is a crime.
Kaplan's actions also violated a raft of state election laws. The campaign-finance report he filed on July 31, 1992, implied that he had loaned his campaign $25,000 of his own funds. Under state law, candidates are required to report the names of individuals who loan money to their campaigns. The Bradbury loan to Kaplan could also have violated federal law, as it is illegal for foreigners to contribute or loan money to political races -- including city and county elections. (Neither Kaplan nor Bradbury could be reached for comment last week.)
Investigators first detected problems with Kaplan's attorney trust account in 1995, according to sources familiar with the case. All they knew then, however, was that Kaplan had transferred a large sum of money from his trust account to his campaign. Prosecutors, who came to suspect Kaplan of mortgage fraud, decided that issues regarding his trust account should be handled by the Florida Bar. In early 1996 they forwarded their information to that professional group.
Investigators for the Bar immediately notified Kaplan, who for months delayed meeting with them to discuss the trust account. When the two sides finally did meet, Kaplan produced a letter from Bradbury stating that Kaplan had his permission to borrow the $25,000 in 1992. Kaplan assured the Bar's auditor Carlos Ruga that he had done nothing wrong. Ruga simply took the county commissioner's word for it.
Rather than inspecting the bank records himself, Ruga relied solely on material submitted by Kaplan, even though, as he noted in his final report, Kaplan "did not produce all the bank statements and canceled checks" his staff had requested.
Despite this incomplete accounting, Ruga recommended closing the Florida Bar's investigation of Kaplan. "Based upon [Kaplan's] representations, I do not see any violations of the Rules Regulating Trust Accounts," Ruga wrote in a memo to Randi Lazarus, assistant staff counsel for the Bar's Miami office.
Lazarus then notified Assistant State Attorney Joe Centorino that the Bar had found nothing amiss. The Bar's slipshod investigation disturbed prosecutors, who reacted by launching their own inquiry into Kaplan's trust account. They subpoenaed all the commissioner's bank records, as well as Mark Bradbury and VMG president Victor Gutierrez.
Based on this more thorough review, prosecutors were able to piece together a complete history of Kaplan's actions. Contacted last week by New Times, Centorino acknowledged the probe. "This was one of several matters that were under investigation," he said. He termed Kaplan's handling of his attorney trust account "inappropriate" and "technically illegal."
Centorino explained that he and his supervisors made a decision last year not to charge Kaplan -- just before the statute of limitations for theft had run out. (The statute of limitations for the campaign-reporting violations ran out after just two years.) He said several things affected that decision, including the fact that there was no public money involved and that the victim, Victor Gutierrez, didn't even know Kaplan had misappropriated (and later replaced) his money until prosecutors brought it to his attention years later. "We still believe this is a matter best handled by the Bar," Centorino noted. "When we finish our other criminal investigations of Kaplan, we will once again forward all the material we have regarding his trust account to the Bar. We expect that to be very soon."
The Florida Bar's Randi Lazarus defended her office's examination of Kaplan's trust account and said her staff did as thorough a job as possible. "But if there is new information," she added, "we would certainly revisit the matter.