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Florida Supreme Court increases referee’s recommended sanction of lawyer from 6 month suspension to 3 year suspension

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Florida Supreme Court opinion suspending a lawyer for 3 years after the referee recommended a 6 month suspension. The opinion is: The Florida Bar v. David Leonard Ross, No. SC11-1106 (May 29, 2014) and the opinion is here:

According to the Court’s opinion, The Florida Bar filed a 2 count complaint against the lawyer. The first Count stated that the lawyer was retained in 2006 to represent a client in an administrative disciplinary proceeding who was subject to a potential suspension from her employment due to a reprimand she had received at work. She signed a retainer agreement with the lawyer and paid a $10,000 retainer from which the lawyer would bill at an hourly rate.

The lawyer filed a response in the administrative proceeding on May 1, 2006, and requested a hearing; however, the client resigned from her position in June 2006 (before any hearings were scheduled) and she immediately informed the lawyer’s office that his services were no longer needed since she was now pursuing an EEOC claim. The client then requested an accounting and a final bill from the lawyer’s office but received no response. On at least four occasions between February 2007 and May 2007, she requested an accounting, a final billing, and she also requested that the lawyer close her account. The lawyer sent a brief e-mail response but did not respond to her request for a final billing.

In January 2008, the client’s new lawyer sent a certified letter to the lawyer, which again requested a final accounting and demanded the return of the remaining retainer. The lawyer signed the return receipt form but did not respond to the request. In April 2008, the client sent the lawyer an e-mail stating that it had been over twenty months since she first requested the final billing statement and the closing of her account. The lawyer replied in an e-mail that he thought his paralegal had resolved the problem and that he would “speak with (the paralegal) on Wednesday.”

After receiving no response after a week, the client told the lawyer that she had not heard from anyone in his office and requested that he call her the next day. Neither the client nor her new lawyer received any response until the lawyer sent the new lawyer an e-mail in September 2008 stating that his previous firm had dissolved and he had moved his office, and claiming that “although not technically obligated”, he would send a check for $5,000.00 at the end of the following week. The client and the new lawyer received nothing from the lawyer and, in November 2009, the client filed a complaint with The Florida Bar. In December 2009, the lawyer sent the client a cashier’s check for $5,000.00, but he never provided a final billing or an accounting.

The second Count stated that the lawyer was involved in an acrimonious family matter in California regarding his elderly aunt, who was a recent widow, and numerous relatives, including his aunt’s great-nephew named Rubin, who was serving as a co-trustee of the aunt’s trust. The lawyer apparently believed that Rubin was abusing his aunt both physically and financially.

In September 2009, the lawyer filed a proceeding in the U.S. District Court for the Central District of California against the conservator and trustees of his aunt’s trust, which included Rubin on behalf of himself and four other relatives. The lawyer listed himself as “per pro” and listed a lawyer named Waddington as the lawyer for the other four relatives with Waddington’s purported signature; however, the lawyer had actually forged Waddington’s signature. Waddington later stated that he would have been willing to represent the relatives after meeting with them and obtaining a retainer agreement; however, he never given the lawyer permission to represent that he was attorney of record to sign his name.

The District Court judge issued an Order to Show Cause and scheduled a hearing for October 2009. At that hearing, the judge entered an order dismissing the action for being improperly filed with the unauthorized and forged signature of Waddington. At a subsequent hearing in December 2009, the judge found the lawyer in contempt for filing the complaint with a forged signature and ordered him to pay sanctions of $5,000.00 and attorneys’ fees to both Waddington and the defense counsel. The lawyer filed an appeal in the Ninth Circuit Court of Appeals which was dismissed for failure to file an opening brief.

After the Bar Complaint was filed, a referee was assigned. After proceedings were held, the referee recommended that the lawyer be found guilty of violating multiple Bar Rules and found, in aggravation, that the lawyer had a prior disciplinary offense (thirty-day suspension in 2001), and substantial experience in the practice of law (since the lawyer was admitted to practice in 1982). The referee also found, in mitigation, absence of a dishonest or selfish motive; imposition of other penalties or sanctions; and remorse, and recommended that the lawyer be suspended for six (6) months.

The lawyer filed a petition for review and argued that the referee should have given more weight to the three mitigating factors and that the recommended sanction of a six-month suspension was too severe and was not supported by case law. The lawyer also argued that his due process rights were violated since the referee adopted the draft report provided by the Bar.

The opinion reviewed the Bar rules violated, the aggravating and mitigating circumstances, and the Standards for Lawyer Sanctions, and reversed the referee’s recommended six (6) month suspension and imposed a three (3) year suspension. Justice Labarga issued a dissenting opinion (with which Justice Canady concurred) stating that the lawyer should have been disbarred:

“Although a sanction that provides an opportunity for rehabilitation is often an appropriate way to address attorney misconduct, the circumstances of this case militate against such consideration. First, Mr. Ross has been an attorney for more than three decades. Rather than operate as a factor in favor of leniency, his length of experience actually aggravates the nature of his conduct because he cannot rely on inexperience or lack of knowledge as to the high standards held for attorneys. Second, Mr. Ross’s disciplinary history reflects a prior thirty-day suspension. See Florida Bar v. Ross, 797 So. 2d 589 (Fla. 2001) (table). Therefore, the conduct for which Mr. Ross is now held to account leaves significant doubt as to any prospect of rehabilitation. Combined with his prior history of disciplinary action, Mr. Ross’s unacceptable acts of misconduct lead me to the inescapable conclusion that disbarment is the appropriate remedy. Therefore, I dissent.”

Bottom line: The referee recommended that this lawyer receive a 6 month suspension based upon the above facts. The lawyer appealed (filed a petition for review) and the Court increased the suspension to 3 years. Two Justices would have disbarred the lawyer.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
[email protected]

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