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Florida Supreme Court imposes stricter discipline than recommended by referee in case involving conflict, competence, and misrepresentation. [Added 7/14/10] Lawyer was charged by the Florida Bar with ethics violations arising from Lawyer's representation of a 17-year-old client. On cross-petitions for review filed by Lawyer and the Bar, the Florida Supreme Court approved the referee's findings that Lawyer violated rules regarding competence (Rule 4-1.1), communication with clients (Rule 4-1.4(b)), conflict of interest (Rule 4-1.7(b), and conduct prejudicial to the administration of justice (Rule 4-8.4(d)). The Court rejected a finding that Lawyer charged an excessive fee (Rule 4-1.5(a)). The Court further concluded that the referee erred in not finding Lawyer guilty of misrepresentation (Rule 4-8.4(c)). Finally, the Court rejected the referee's recommended discipline (a 90-day suspension) as too lenient and ordered Lawyer suspended for 6 months. Lawyer represented Client, a 17-year-old female, in connection with a potential federal court claim for unauthorized videotaping and distribution of her appearing in spring break activity. Lawyer had less than 3 years practice experience, and no experience litigating in federal court. Lawyer associated another law firm, and they signed a contingent fee agreement with Client. Lawyer was to receive 9.6% of the gross recovery. Later Lawyer advised Client to replace the first law firm with another firm. Under the new contingent fee agreement, Lawyer was to receive 11.25% of the gross recovery. Lawyer thereafter again advised Client to fire the second firm and hire a third law firm. Under the contingent fee agreement involving the third firm, Lawyer was to get a still larger share of the recovery. Subsequently the pattern was repeated with a fourth and then a fifth law firm. Finally Client fired Lawyer and retained new counsel to pursue her claim. Lawyer filed an action in federal court seeking fees from Client on a quantum meruit basis; he sought 45% of Client's recovery. The Court approved the referee's findings that Lawyer failed to provide competent representation (Rule 4-1.1), failed to sufficiently explain matters to Client in order for Client to make informed decisions (Rule 4-1.4(b)), and allowed his personal interest in a fee to delay the resolution of the case desired by Client and increased the cost to Client (Rule 4-1.7(b) and Rule 4-8.4(d)). The referee also found Lawyer guilty of charging an excessive fee. The Supreme Court rejected this finding, stating: "In recommending that [Lawyer] be found guilty of violating rule 4-1.5(a), the referee relied upon two facts – i.e., that the percentage of [Lawyer]’s fee increased with each subsequent hiring of a new law firm and that [Lawyer] sought 45 percent of the client’s recovery in his action for quantum meruit in federal court. While the record supports these findings of fact, they are an insufficient basis upon which to conclude that [Lawyer]’s fee was excessive. Moreover, the Bar did not present expert testimony to establish that [Lawyer]’s fee was unreasonable." The Court concluded that the referee erred in not finding Lawyer guilty of conduct involving dishonesty, misrepresentation, fraud, or deceit (Rule 4-8.4(c)). The referee essentially found that "the Bar failed to present clear and convincing evidence establishing intent, a necessary element of the rule violation alleged." The referee, however, misapplied the "intent" requirement. To satisfy this requirement, the conduct need only be "deliberate or knowing." As a result, the Court stated that "the referee erred as a matter of law when he required the Bar to establish dishonesty, misrepresentation, fraud, or deceit in order to prove intent. We conclude that the Bar established the element of intent by clear and convincing evidence in the record, based upon [Lawyer]’s deliberate conduct in telling his client not to speak to the fired attorneys or she would owe them fees and that she would not have to pay the other lawyers." The Court also rejected the referee's findings regarding mitigating factors. Finally, the Court ruled that the recommended sanction of a 90-day suspension was too lenient and concluded that a 6-month suspension was the appropriate sanction. Florida Bar v. Shankman, __ So.3d ___ (Fla., No. SC08-1107, 7/8/2010). |
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