Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida increasing the referee’s recommended discipline from a 91 day suspension to disbarment. The opinion is The Florida Bar v. Swann, SC11-836 (June 20, 2013). The opinion is attached and is also here: http://www.floridasupremecourt.org/decisions/2013/sc11-836.pdf.
According to the opinion, in April 2011, The Florida Bar filed a five-count complaint against the lawyer, alleging that he engaged in misconduct in violation of several of the Rules Regulating the Florida Bar. A referee was appointed to consider the matter and, following the final hearing, submitted his report with findings and recommendations to the Court. The report found numerous Bar Rule violations on all five counts and recommended a 91 day suspension. The report found that the lawyer engaged in dishonest and deceitful conduct, took improper advantage of his mother in serving as personal representative of his late father’s estate, concealed assets in his divorce and was involved with his girlfriend to take advantage of an elderly and vulnerable client. The opinion states:
“In this case, (the lawyer)’s various acts of misconduct must be considered together as a whole. (The lawyer) engaged in twenty-six separate rule violations, spanning a period of several years. Some of his conduct, especially his involvement with Ms. Rhoualmi to exploit his client, Mr. Shelton, is particularly serious. (The lawyer)’s extensive and egregious misdeeds warrant a more severe sanction than the ninety-one-day suspension recommended by the referee.
“Moreover, every count described in the referee’s report involves some instance of (the lawyer)’s dishonest and deceitful conduct. Our prior decisions have made clear that basic fundamental dishonesty is a serious flaw, one which cannot be tolerated by a profession that relies on the truthfulness of its members. Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002); Fla. Bar v. Korones, 752 So. 2d 586, 591 (Fla. 2000). We conclude that (the lawyer)’s numerous acts of dishonest conduct, together with his other serious ethical violations, warrant disbarment
“Finally, the fact that much of the misconduct in this case involves (the lawyer)’s personal affairs does not change our conclusion that disbarment is warranted. This Court has long held that ethical violations which occur while a member of The Florida Bar is not acting as an attorney can nonetheless subject the attorney to disciplinary proceedings.
As this Court has stated before, “an attorney is an attorney is an attorney.” Even in personal transactions and when not acting as an attorney, attorneys must avoid tarnishing the professional image or damaging the public. . . . The practice of law is a privilege which carries with it responsibilities as well as rights. That an attorney might, as it were, wear different hats at different times does not mean that professional ethics can be “checked at the door” or that unethical or unprofessional conduct by a member of the legal profession can be tolerated.
Fla. Bar v. Della-Donna, 583 So. 2d 307, 310 (Fla. 1989) (citations and internal quotation marks omitted). “This Court has previously imposed lengthy suspensions or disbarment when attorneys engage in dishonest conduct in their personal matters. See, e.g., Fla. Bar v. Draughon, 94 So. 3d 566, 571 (Fla. 2012) (suspending an attorney for one year for defrauding the former property owner in a real estate transaction) (‘Although Draughon was acting on behalf of his own corporation, and not as a lawyer representing a client in a transaction, he is nonetheless a member of The Florida Bar and subject to the disciplinary authority of this Court. The Court expects members of the Bar to conduct their personal business affairs with honesty and in accordance with the law.’) (citation and internal quotation marks omitted); Fla. Bar v. Hall, 49 So. 3d 1254 (Fla. 2010) (disbarring an attorney for harassing property owners who refused the attorney’s offer to buy their property and creating a false agreement for sale). In Hall, the Court expressly noted that Hall ‘purposefully used her knowledge of the law to harm others, for her own personal benefit.’ Id. at 1258. Similarly, in this case, we conclude that Swann used his knowledge of the law to manipulate others.”
“Ultimately, based upon (the lawyer’s) numerous acts of dishonest conduct, Ultimately, based upon Swann’s numerous acts of dishonest conduct, together with the aggravating2 and mitigating factors found by the referee, we conclude that disbarment is warranted. Thus, we disapprove the referee’s recommended sanction, a ninety-one-day suspension, and instead disbar (the lawyer).”
Bottom line: This is another example of the Florida Supreme Court not hesitating to increase the discipline recommended by the referee assigned to the Bar disciplinary case, in this case from a 91 day suspension (which is the minimum for a rehabilitative suspension requiring reinstatement) to disbarment, which was requested by The Florida Bar.
Be careful out there!
Disclaimer: this blog 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.
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Clearwater, Florida 33759
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