Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Supreme Court of Florida which rejected a referee’s recommended 90-day suspension as too lenient and imposed a one (1) year suspension for the lawyer’s serious misconduct in an immigration matter and in a subsequent malpractice suit. The opinion is The Florida Bar v. Whitney, No. SC11-1135. The opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1135.pdf
According to the opinion, the referee found the following facts: the client (Dr. Hill) hired the lawyer on January 19, 2004 to provide immigration and legal advice. At the initial meeting, the lawyer was told that a Ms. de Oliveira (who was at the meeting) was a native of Brazil and was in the United States illegally for the third time and that she had received a letter from the United States Department of Justice banning her from the country for twenty years because of her two previous illegal entries. The lawyer was also told that the client intended to marry Ms. de Oliveira, but that they were not engaged and the client had only known her since November 2003 when she moved into his house. Based upon the meeting, a fee agreement was prepared and executed with a flat fee of $15,000.00 and a $5,000.00 deposit for future costs.
The fee agreement provided that the lawyer would represent Ms. de Oliveira (not the client) “in regard to all matters pertaining to her immigration status” and that the lawyer’s obligations under the contract would terminate “upon decision of the Office of the Attorney General granting or denying permission for (Ms. de Oliveira) to reenter the United States.” The client provided the lawyer with two checks, one dated January 26, 2004, in the amount of $10,000.00, and the other dated February 6, 2004, in the amount of $9,365.00 and also paid for an airline ticket for the lawyer to travel to Brazil. The lawyer deposited both checks into his personal checking account and used the funds “to pay his personal bills because respondent was experiencing financial problems at the time.”
The lawyer traveled to Brazil twice in early 2004 to allegedly research the requirements for the client and Ms. de Oliveira to marry in Brazil; however, the referee found that this information was easily obtained without leaving the country. The lawyer claimed that one of the trips to Brazil was to obtain information on rental properties for Ms. de Oliveira and to verify her Brazilian documents. Since the location that the lawyer found was in an area other than where Ms. de Oliveira lived in Brazil, the referee found that that the trip was for a purpose other than for the client’s case. In September 2004, the lawyer took Ms. de Oliveira’s Brazilian passport, which she advised was a falsified document, and other original Brazilian documents. The referee found that the lawyer “took no further meaningful action with respect to Ms. de Oliveira’s immigration matter.”
The client contacted the lawyer in late 2004 or early 2005 after he had not received any communication since hiring him in January 2004. The lawyer said that he had not initiated the process to have Ms. de Oliveira remain in the United States or to reenter legally so that they could be married in the United States, that Ms. de Oliveira needed to marry the client in Brazil, and that he would only proceed further after the client paid an additional fee of between $40,000.00 and $60,000.00. The client then fired the lawyer and demanded a full refund of the fees and costs that he had paid and the return of Ms. de Oliveira’s documents. The lawyer refused and stated that he had earned the fees and costs. Ms. de Oliveira sent the lawyer a letter dated February 22, 2005 demanding the return of her original documents and the lawyer then complied with that request and Ms. de Oliveira returned to Brazil in or around April 2005. The referee found that the lawyer failed to provide an accounting to the client upon his request and failed to timely return Ms. de Oliveira’s documents.
The client filed a civil lawsuit against the lawyer in July 2005 alleging breach of contract, legal malpractice, and unjust enrichment. The lawyer failed to appear for his properly noticed December 21, 2005 deposition and never contacted opposing counsel or filed a notice of unavailability. The lawyer also did not produce any documents in the request for production dated September 20, 2005, and which were ordered to be produced by December 19, 2005. He did not produce any documents until January 4, 2006 and never produced all of the documents.
A hearing was held on the client’s second motion to compel on January 18, 2006 and the lawyer was admonished by the court and advised to fully cooperate with discovery. At the lawyer’s deposition on January 27, 2006, the lawyer arrived with a client file containing documents that he had not previously produced pursuant to the request for production. The lawyer produced the documents with redactions without making an objection or stating that a redaction had been made. The lawyer also failed to produce credit card statements or receipts responding to the client’s first set of interrogatories that the circuit court had ordered him to produce.
The referee found that “(the lawyer) engaged in a course of conduct (in the malpractice litigation) where he was uncooperative in coordinating the scheduling of hearings”, that he testified falsely and deceptively about advertising and the name of his law firm at his deposition. He also testified falsely that the only pending litigation in which he was involved was a lawsuit against him by U.B. Vehicle Leasing, Inc. related to a dispute as to the mileage of a car even though a mortgage foreclosure action had been filed against him on November 1, 2004 and was pending at the time of the deposition. The lawyer further falsely testified that the mortgage on his home had not been in foreclosure. The referee found the lawyer’s failure to reveal the existence of the foreclosure action “particularly relevant to (the lawyer’s) lawsuit given (the lawyer’s) sworn deposition testimony on January 27, 2006, that he deposited the fees and costs the client paid him into his personal checking account and used the funds to pay, among other things, the mortgage on his home.
The trial court in the malpractice action entered an order granting a motion for sanctions and entry of default judgment on May 30, 2006, striking the lawyer’s defenses and awarding attorney’s fees and costs to the client. The court also found that “(the lawyer) had ‘willfully failed and refused to comply with previous order (sic) of this Court, failed and refused to participate in pretrial discovery and provided falsified documents’ in the case.” The trial court entered a final judgment against the lawyer on October 4, 2007, including a principal amount of $20,000.00, which the lawyer paid to the client. The lawyer appealed to the Fifth District Court of Appeal, which upheld the final judgment but remanded for a determination of the correct amount of attorney’s fees. A Second Amended Final Judgment was entered on June 15, 2011 and, as of the date of the referee’s report, the lawyer had not paid any of the additional $24,246.00 in attorney’s fees, expert fees, and taxable costs awarded to the client.
The opinion concluded that the lawyer had “accepted a substantial fee from his client but did not perform notable work in furtherance of that representation. He also misused his client’s funds by twice traveling to Brazil, once for no apparent case-related reason and once as unnecessary to obtaining the information sought. While the immigration issue may have been complicated, Respondent did not communicate that issue to Dr. Hill and Ms. de Oliveira. Next, with respect to the malpractice action, Respondent failed to produce documents, did not appear for his first noticed deposition, and offered frivolous responses to the interrogatories. Respondent has not paid the portion of the judgment awarding attorney’s fees and costs in the malpractice action, and continues to refer to his conduct as negligent. Based upon the facts in this case and established case law, we find the referee’s recommended sanction of a ninety-day suspension unsupported and instead impose a one-year suspension.”
Bottom line: This appears to be a somewhat blatant case of a lawyer taking advantage of a client, misusing client funds, and abusing the judicial system. Based on the facts found by the referee as described in the opinion (and adopted by the court), it is surprising that the court did not impose a more severe sanction.
Let’s be careful out there!
Disclaimer: this Ethics Alert 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, EsquireLaw Office of Joseph A. Corsmeier, P.A.