Thursday, January 11, 2018

A Lawyer Discipline Story

A purpose of this blog is to memorialize things that people may know, but perhaps do not contemplate daily. I was shocked to catch a news story recently, involving an attorney who I remember from my time on the bench in Pensacola. This story is troubling, and stands potentially as a reminder to us all. Diligence and responsiveness is a critical element in the world of litigation. And honesty should just go without saying.

This attorney had enviable education opportunities at familiar and reputable educational institutions. There were opportunities to practice with some exceptional attorneys and law firms. There were obvious skills and abilities that showed promise for an outstanding future, when this lawyer was admitted to The Florida Bar in 2003. 

Following three complaints, and an investigation, the Bar and this attorney entered into a consent judgment (a plea to avoid a trial). The facts included three clients. The first wanted to sue a home builder. A lawsuit was filed and served, but was later dismissed by the judge for failure to prosecute. The lawyer elected not to tell the client that the suit was dismissed. The lawyer thereafter told the client that his issues were proceeding and being "worked on daily." In response to later status inquiries, the attorney said that "computer issues" were impeding communication and updates. 

Knowing that the case had been dismissed, the attorney nonetheless told the client that work was being performed to serve the defendants. The client first learned of the dismissal through the Bar grievance process. The conclusion was the attorney "failed to competently and diligently represent" the client," and "failed to adequately communicate with" the client. 

In 2010, another client had hired this attorney in a child support matter. This client also had trouble communicating with the attorney. The attorney was tardy in communicating regarding discovery responses. A court date was scheduled, which the client asked have moved because he was deploying to Afghanistan. The attorney advised the client of the "next court date," but "failed to mention that the 'court date' was the final hearing in the case. Due to the deployment, the attorney's staff advised the client that the case "may continue until your return." When no continuance could be agreed upon however, the attorney did not update the client and advise the hearing would proceed. 

The attorney then, "without the knowledge or consent of " the client accepted a "Stipulated Order" by which the client agreed to pay child support and attorney's fees to the former spouse. The client accused the attorney of misleading him, and of denying there had been any resolution. The client presented emails from the attorney that stated there had been no settlement, and that the case was "pushed back until I return." The grievance referee concluded that the attorney "misrepresented the status of the case," acted without the "client's knowledge or consent, created a financial hardship for" the client, and generally failed to communicate appropriately with the client. 

The attorney later testified that he had communicated with the client before entering the agreement "including the increase in child support and payment of his former wife's attorney's fees." The attorney testified that thus there was "permission and approval to execute the Stipulated Order." The client "emphatically denied these statements." The referee concluded that the attorney "made false statements to The Florida Bar at the grievance committee hearing." And, that the attorney "engaged in misrepresentation, fraud and deceit." 

In a third case, the attorney was hired regarding a business dispute. That client's goals did not proceed as hoped, and the client was later sued by a landlord intertwined in the dispute. Eventually, "a settlement was reached in the suit with the landlord," but at significant cost to the client. The litigation of the original issues was then to proceed, but repeated attorney promises of filing a complaint failed to materialize. The referee noted various unfulfilled promises to file a lawsuit, over a period of months. 

In 2015, The Florida Supreme Court accepted and adopted the "the uncontested report of the referee." The attorney was "suspended from the practice of law for ninety days" and ordered to pay the costs incurred by the Bar in prosecuting the case ($4,467.65). After the suspension, the attorney was "placed on probation for two years," and ordered to attend an ethics education program. 

Reflect on that. The ability to practice law is interrupted (as is the income from working), a significant cash penalty is imposed, and further education is ordered. This was not an insignificant penalty.  Some might argue that when a lawyer tells lies a disbarment is called for. However, this outcome was a significant penalty, but it afforded the attorney something that many people never get, a second chance. It is likely that everyone wishes for a second chance at some point. 

In 2016, more issues arose. The attorney then sought a "Disciplinary Revocation," which is effectively being disbarred.  Noting the prior complaints, suspension and probation regarding "issues of client neglect and misrepresentation to clients about the status of their cases," the attorney acknowledged additional, more recent, allegations. These included failure "to notify judges, clients, and opposing counsel of his suspension; and acceptance of at least one new client during his suspension," and "failure to cease the practice of law during" suspension. In effect, the second chance offered an opportunity and the attorney failed either to appreciate it or comprehend it. 

In this "revocation," the attorney agreed to "pay restitution" of almost $5,000, and to reimburse The Florida Bar for the costs of the disciplinary case. In July 2016, The Florida Supreme Court entered an order granting that voluntary disbarment and ordering the attorney to pay $3,821.85 in costs to The Florida Bar. And that, one might think, would be the end of the story. But, none of that disciplinary investigation or action received much publicity. 

What did generate some publicity was the news story in November 2017, about 18 months after the effective disbarment. The November story notes that in August, 2017 the attorney plead "no contest" in a criminal case. That case alleged that the attorney continued to practice law after being voluntarily disbarred, even accepting a $5,000 retainer from a client. Before the attorney was sentenced, another person accused the attorney of charging "several Gulf Power Co. bills to" a disabled client, and removing funds from that client's checking account.

By the November 20, 2017 criminal sentencing, the former attorney had repaid the money regarding these latest actions. He was reportedly sentenced to "30 days in jail and three years of probation." And that, generated some news coverage. 

The legal profession is stressful and challenging in a variety of other ways. There are demands on time and finances. Few people hire a lawyer with the admonition "this is really not that important, just take your time." No, people come to lawyers when they are in need of help, now. And, the vast majority of them will be markedly uninformed or misinformed (television is our bane) as to how the legal system actually works. 

This story illustrates some critical points. The most important is not to take other people's money. Perhaps tied for first is do not lie. Those two are simple, direct, and primary. But, as important is that people need diligent representation. Their goals and needs have to be addressed. That does not mean they must "win"; every case has winners and losers, and it is not possible for everyone to "win." Winning is a point, but the main point is diligence; moving the client's case forward toward conclusion. 

Finally, it is critical to remember clients enter the legal world with questions, concerns, and too little foundational understanding. Lawyers have to communicate with clients, persistently, consistently, and repeatedly. The client needs to know what is happening, what is not happening, and why. The communication has to be honest and forthcoming, it has to be informative but not overly technical. Because memory is what it is, and because schedules are busy, many believe that communication should be in writing. 

The legal profession has been diminished by the actions of this attorney. The actions and inactions described are a matter now of public record. That is the point. I have omitted identification in this post, but these facts are all easily checked. The point of this post is not to embarrass a person. The point is to remind the rest of us that we stand for a noble profession, represent people in need, and have obligations to both the people and profession. 

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