Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Florida lawyer disciplinary opinion rejecting a referee’s recommendation of suspension and disbarring two lawyers whose bookkeeper allegedly misappropriated thousands of dollars from the trust account; notwithstanding their acknowledged efforts to make the clients whole. The cases are: The Florida Bar v. Mark Enrique Rousso and Leonardo Adrian Roth, No. SC11-16 (March 18, 2013). The opinion is also at: http://www.floridasupremecourt.org/decisions/2013/sc11-15.pdf.
The Bar Complaints involved allegations of, inter alia, serious trust account violations against two lawyers and the Complaints were consolidated. According to the opinion, the lawyers discovered that there was a shortage of thousands of dollars in their trust account and claimed that a non-lawyer bookkeeper had embezzled the missing funds. The referee found that “100’s of millions of dollars passed through” the law firm trust account and that the trust account “imbalance” was “roughly $4.38 million”; however, the referee found that there was no evidence of any misappropriation by the lawyers and recommended a fifteen month suspension for Roth and a twelve month suspension for Rousso.
The Florida Supreme Court opinion stated that “the actions that (the lawyers) took to manage the drastic shortages in the trust account included additional acts of misconduct. (The lawyers) accepted funds from clients when (the lawyers) knew the account was underfunded. This was a conflict of interest. They did not inform clients of the firm’s financial issues when dealing with them, yet they continued to represent the clients. In addition, they were using this “fresh money” from some clients to satisfy past due client liabilities. Also, Roth solicited the personal loan from client Yordi, which was a conflict of interest, and (the lawyers) used those personal funds to bolster the trust account, which was commingling. (The lawyers) engaged in additional acts of commingling by repeatedly depositing their personal funds into the trust account.”
“(The lawyers) also committed violations of rule 4-8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation) by taking money from clients and depositing it into the trust account, and continuing to represent those clients, without disclosing to the clients that the trust account was seriously underfunded. They also violated rule 4-8.4(c) by engaging in the business transaction with client Yordi at a time when they knew it would be difficult if not impossible to repay the debt to him.”
“The Court does not view violations of rule 4-8.4(c) as minor. The Court has clearly stated that ‘basic, fundamental dishonesty…is a serious flaw, which cannot be tolerated.’ Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002). After considering case law and the egregious misconduct present in this case, we conclude that disbarments are the appropriate sanctions.” The court also rejected referee’s “equitable adjustment” reducing the costs awarded to The Florida Bar.
Bottom line: Trust accounting is one of the most daunting and important responsibilities facing a lawyer in his or her practice, which cannot be delegated entirely to support staff, regardless of how trustworthy that staff person is perceived to be. An additional problem in this case was the fact that “100’s of millions of dollars passed through” the law firm trust account and…the trust account “imbalance” was “roughly $4.38 million”; however, regardless of the amount of funds which pass through the trust account, every lawyer must be extremely vigilant to insure that the trust account complies with all of the Bar trust account rules and that the funds are not misappropriated.
Be careful out there, especially if you have a trust account!
Disclaimer: this e-mail 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