An injured worker hired an attorney to assist him with a workers' compensation claim. The case proceeded without incident, until it settled in May 2010. The Motion for Approval of Fees and Child Support Arrearage was filed in the typical format. The settlement was for $5,000.00, and the fee payable to counsel was to be $1,000. The motion stated that costs were $0.00 and that the Claimant would receive $4,000.00.
To this point, likely everyone is on the same page, and this seems rather elementary. About one month later, however, the situation becomes extraordinary. The injured worker writes to the assigned judge, upset that he received not $4,000.00 but $3,550.00. The injured worker included a copy of his settlement check ($3,550.00) and a "ledger" he had received with the check. The "ledger reflected $450.00 in "costs" that had been deducted from the injured workers' settlement proceeds, after the entry of the approval order. This was comprised of $2.00 for "office expenses" and $448.00 for "investigator fees."
The assigned Judge entered an order to show cause, reflecting these allegations, and noticed a hearing. The order was clear. Claimant, the attorney, and the "investigator" were to appear at a hearing in regards to the Show Cause Order. The hearing was to occur approximately one month later. The attorney sought and received a short (30 days approx.) continuance of the hearing until August 5, 2010. On that date, despite having sought continuance and thus agreed to this date, the attorney did not appear for the hearing, did not seek leave for his absence, and did not notify the assigned judge of any reason for an inability to attend. In his stead, the firm's bookkeeper, a firm legal assistant, and the firm's "investigator" attended.
The firm's "investigator" testified. He was neither a paralegal, an attorney, nor a licensed investigator. The Judge found that his testimony supported that the investigator's duties were primarily clerical. The Judge concluded that the services performed by the investigator were "surrogate legal services for which the" law firm "bills in addition to services performed by his legal assistant."
The firm bookkeeper testified that the reduction of $450.00 was an error, and should have been paid from the approved fee of $1,000.00. She committed to "immediately" reimburse the injured worker. It is perhaps curious to the reader that this did not occur in the sixty (app.) days after the order to show cause and prior to the hearing.
The Judge concluded that the settlement documents filed were "false and misleading," and specifically that the statement, that no costs were charged related to the settlement, demonstrated a lack of candor towards the tribunal.The Judge noted the failure of counsel to appear for the hearing, and that this demonstrated a "lack of competency in the legal representation" and "inadequate or insufficient attorney oversight" of the firm staff involved. The Judge ordered the reimbursement of the $450.00 and referred the matter to The Florida Bar.
The attorney responded with an angry and inappropriate letter to the Judge, peppered with slurs, hyperbole and errors. When compelled by The Bar to respond to the complaint, the attorney sent The Bar a similar (almost the identical letter"). In March 2012, The Bar filed its Formal Complaint with the Supreme Court, and concluded that the attorney had violated the following Rules Regulating The Florida Bar:
4-3.3 (Candor Toward the Tribunal); 4-8.2(a)(Impugning Qualifications and Integrity of Judges or Other Officers); 4-3.4(c) (A lawyer shall not knowingly disobey an obligation under the rules of a tribunal) and 4-1.1 (Competence).
On April 16, 2013, the Supreme Court issued its decision. The attorney was suspended from the practice of law for one hundred eighty days, and ordered to pay The Bar $1,451.41. On October 13, 2013 the attorney will be eligible to renew the practice of law in Florida. Eligible is a critical word. The attorney cannot just renew the practice in October.
According to Rule 3-7.10, a lawyer that is suspended for 91 days or more may be reinstated and eligible again to practice by filing a petition for reinstatement with the Supreme Court. The filing must be accompanied by proof that the attorney has deposited the reinstatement proceeding cost with The Florida Bar, and evidence showing "all costs assessed" have been paid and "restitution has been made." Then there is a reinstatement hearing before a referee appointed by the Court. The details of this are in Rule 3-7.10. It is a lengthy rule. Suffice it to say that reinstatement does not appear to be an easy process. The burden of proof is on the petitioning attorney, who must prove entitlement to reinstatement, The Florida Bar v. Cohen, 560 So.2d 785 (Fla. 1990). The evidence must be clear and convincing.
Over $450.00? Is that what a license to practice law is worth in today's market? The costs of the original disciplinary proceeding ($1,451.41) are over three times the $450.00 in costs deducted from the injured workers' settlement proceeds to begin with. It is possible that the reinstatement proceedings cost deposit will be similar.