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IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, CASE NO.: SC10-352
Complainant, TFB NO.: 2009-10,532(6C)
v. THOMAS WILLIAM CAREY,
Respondent.
_____________________________/
THE FLORIDA BAR'S INITIAL BRIEF
Karen Boroughs Lopez Bar Counsel Florida Bar No. 444553 The Florida Bar Suite 2580 4200 George J. Bean Parkway Tampa, Florida 33607-1496 (813) 875-9821
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TABLE OF CONTENTS PAGE
TABLE OF CONTENTS ............................................................................................ i TABLE OF CITATIONS ......................................................................................... ii SYMBOLS AND REFERENCES ............................................................................ iv STATEMENT OF THE FACTS AND OF THE CASE ........................................... 1 SUMMARY OF THE ARGUMENT ...................................................................... 13 STANDARD OF REVIEW ..................................................................................... 15 ARGUMENT ........................................................................................................... 16 I. RESPONDENT’S SIMULTANEOUS REPRESENTATION OF TWO
CLIENTS WITH ADVERSE INTERESTS WAS A CONFLICT OF INTEREST IN VIOLATION OF RULE 4-1.7 ............................................. 16
II. RESPONDENT VIOLATED RULE 4-1.4 BY FAILING TO FULLY
EXPLAIN TO HIS CLIENT THE IMPLICATIONS AND RISKS OF THE DUAL REPRESENTATION ........................................................................ 29
III. A 30-DAY SUSPENSION AND ATTENDANCE AT THE FLORIDA
BAR’S ETHICS SCHOOL IS THE APPROPRIATE SANCTION FOR RESPONDENT’S MISCONDUCT ............................................................. 31
CONCLUSION ....................... ……………………………………………………38 CERTIFICATE OF SERVICE……………………………………………………39 CERTIFICATION OF FONT SIZE AND STYLE……………………………….39
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TABLE OF CITATIONS
CASES PAGE Fla. Bar v. Brown, 978 So.2d 107 (Fla. 2008) .................................................. 28, 33 Fla. Bar v. Cosnow, 797 So.2d 1255 (Fla. 2001) .................................................... 15 Fla. Bar v. Dunagan, 731 So.2d 1237 (Fla. 1999) ............................................ 27, 36 Fla. Bar v. Kossow, 912 So.2d 544 (Fla. 2005) ....................................................... 15 Fla. Bar v. Mastrilli, 614 So.2d 1081 (Fla. 1993) ................................................... 35 Fla. Bar v. Maurice, 955 So.2d 535 (Fla. 2007)................................................ 34, 35 Fla. Bar v. Rue, 643 So.2d 1080 (Fla. 1994) ........................................................... 15 Fla. Bar v. Vannier, 498 So.2d 896 (Fla. 1986) ...................................................... 15 Morse v. Clark, 890 So.2d 496 (Fla. 2004) ....................................................... 36, 37 RULES OF DISCIPLINE R. Regulating Fla. Bar 3-7.7 .................................................................................... 12 R. Regulating Fla. Bar 4-1.1 .................................................................................... 35 R. Regulating Fla. Bar 4-1.3 .............................................................................. 33, 35 R. Regulating Fla. Bar 4-1.4 .............................................................................. 29, 34 R. Regulating Fla. Bar 4-1.4(a) ...................................................................... 8, 33, 35
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R. Regulating Fla. Bar 4-1.4(b) .....................................................1, 8, 13, 29, 31, 38 R. Regulating Fla. Bar 4-1.7 ............................................... 16, 17, 23, 26, 27, 34, 36 R. Regulating Fla. Bar 4-1.7(a) ............................. 1, 8, 13, 16, 28, 31, 33, 35, 37, 38 R. Regulating Fla. Bar 4-1.7(a)(1) ........................................................................... 21 R. Regulating Fla. Bar 4-1.7(a)(2) ........................................................................... 21 R. Regulating Fla. Bar 4-1.7(b) ...................... 1, 8, 13, 16, 17, 26, 28, 31, 33, 35, 38 R. Regulating Fla. Bar 4-1.9 .................................................................................... 36 R. Regulating Fla. Bar 4-1.16(a) ................................................................................ 8 R. Regulating Fla. Bar 4-3.2 .................................................................................... 35 R. Regulating Fla. Bar 4-5.1 ...................................................................................... 9 R. Regulating Fla. Bar 4-8.4(a) .................................................................................. 9 R. Regulating Fla. Bar 4-8.4(c) .......................................................................... 33, 34 FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS Fla. Stds. Imposing Law. Sancs. 4.3 ........................................................................ 31 Fla. Stds. Imposing Law. Sancs. 4.32 ................................................................ 31, 34 ETHICS OPINIONS ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 92-367 ............ 21, 24
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SYMBOLS AND REFERENCES
In this Brief, the Complainant, The Florida Bar, will be referred to as “The
Florida Bar” or “the Bar.” The Respondent, Thomas William Carey, will be
referred to as “Respondent.”
"TR" will refer to the transcript of the final hearing before the Referee in
Supreme Court Case No. SC10-352 held on July 29 and 30, 2010. "TFB Exh."
will refer to exhibits presented by The Florida Bar and "R Exh." will refer to
exhibits presented by Respondent at the final hearing before the Referee. The
Final Report of Referee November 4, 2010, will be referred to as "RR." The Video
Deposition of Roberta Flowers, taken on June 21, 2010, will be referred to as
“Depo.”
“Rule” or “Rules” will refer to the Rules Regulating The Florida Bar.
“Standard” or “Standards” will refer to Florida Standards for Imposing Lawyer
Sanctions.
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STATEMENT OF THE FACTS AND OF THE CASE
This case involves the conflict of interest created by Respondent’s
simultaneous representation of two clients with adverse interests. The facts are
largely undisputed. Respondent claims his conduct did not constitute a conflict of
interest. The Florida Bar submits that Respondent engaged in a conflict of interest
by representing a longtime client in a personal injury lawsuit and another client in
a disinterment case. Respondent’s personal injury client was the general manager
of the cemetery and likely to be a material witness concerning the alleged tortious
misconduct. The Referee concluded that Respondent’s conduct did not violate the
Rules Regulating the Florida Bar. The Bar submits that Respondent violated Rules
4-1.7(a) and (b) by simultaneously representing clients with adverse interests, and
Rule 4-1.4(b) by failing to fully explain the risks and ramifications of the
simultaneous representation to his client. The facts can be summarized as follows.
On November 15, 2005, Lisa Sommers hired Respondent’s law firm, Carey
and Leisure, to represent her regarding personal injuries sustained in an automobile
accident. TR 58. The accident happened approximately 10 months after Ms.
Sommers had neck surgery. She claimed to have re-injured her neck and sustained
additional injuries. TR 45-46. Ms. Sommers initially hired another attorney, but
discharged him after approximately two weeks because he also represented her in-
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laws in another case, and she did not feel comfortable due to the family situation.
TR 48. In October 2007, Respondent filed a lawsuit on behalf of Ms. Sommers
against State Farm Insurance Company. RR, par. 3; R Exh. 5. On March 6, 2008,
Ms. Sommers’s deposition was taken by counsel for the defendant. TFB Exh. 4.
Ms. Sommers met with Respondent at his office prior to the deposition and he
attended the deposition. TR 57. During the deposition, Ms. Sommers was asked
about her employment. She testified that she was employed since 1999 as general
manager for Trinity Memorial Gardens, a funeral home and cemetery. She stated
that her duties included overseeing the daily operations, grounds, ground
maintenance, sales, and financials. TFB Exh. 4, p. 5.
On March 5, 2008, the day before Ms. Sommers’s deposition, Respondent’s
law firm was hired by Priscilla Mellette to pursue an action against Trinity
Memorial Gardens for wrongfully allowing her husband’s body to be disinterred.
RR, par. 6; R Exh. 8. The fee agreement was signed by Respondent’s partner,
Katherine Neal. R. Exh. 8. On or about June 12, 2008, Respondent filed a lawsuit
on behalf of Ms. Mellette against Trinity Memorial Gardens. RR, par. 7; TFB Exh.
5. The complaint alleged tortious interference with a dead body and reckless
infliction of emotional distress. The lawsuit alleged that Trinity Memorial
Gardens, by and through its officers, operators, owners, employees, agents,
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representatives and/or servants, acted in a willful, wanton, or malicious manner by
allowing the body of Ms. Mellette’s husband to be improperly exhumed and
removed. TFB Exh. 5.
The lawsuit against Trinity Memorial generated a considerable amount of
media interest. The day before the lawsuit was filed, Respondent caused to be sent
a “Media Alert” to the press stating that he would hold a press conference at his
law offices in Clearwater to announce the filing of a lawsuit against a cemetery.
TFB 1 (PUB532A0029); TR 283-84. Tammie Fields, a news reporter with
Channel 10 news, received the Media Alert and called Ms. Sommers. TR 88-89,
91-92, 99. On June 12, 2008, the day the lawsuit was filed, Ms. Sommers was
surprised when she was confronted by the media in her capacity as general manger
of Trinity Memorial regarding the lawsuit. RR, par. 10; TR 100-101. Ms.
Sommers received calls at her office from the media requesting to speak with her
about the case. The press showed up at her office with cameras requesting an
interview. Ms. Sommers learned that Respondent, her attorney for the past three
years in her personal injury lawsuit, was representing another client in a lawsuit
against her employer. RR, par. 12; TR 59. That evening, Ms. Sommers saw
herself on television. She later saw television news clips of Respondent being
interviewed about the Mellette case. TR 59-60, 63; TFB Exh. 17.
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After learning about the lawsuit and seeing the media coverage, Ms.
Sommers was immediately concerned that there was a conflict because she was
Respondent’s current client and he was suing the cemetery for which she worked
as the general manager. TR 64, 66. Ms. Sommers was the on-site supervisor for a
cemetery and funeral home operation with approximately 20 employees. She was
responsible for overseeing the daily operations of the grounds and the funeral
home, and for training, hiring, and firing personnel. TR 64. On June 16, 2008,
Ms. Sommers called The Florida Bar. RR, par. 13. She called the Bar because of
her concerns about a conflict in Respondent’s representation of her and Ms.
Mellette. TR 66. Ms. Sommers spoke with Theodore Littlewood, an attorney with
The Florida Bar’s Attorney Consumer Assistance Program. TR 67; TFB Exh. 10.
Mr. Littlewood then called Respondent and spoke with him about Ms. Sommers’s
concerns. TFB Exh. 10.
The next day, June 17, 2008, Ms. Sommers received a call from
Respondent’s office requesting that she come in for a meeting. Later that day, Ms.
Sommers met with Respondent and his partner, Jodi Leisure. Ms. Sommers
reminded Respondent that she was the general manager at Trinity Memorial
Gardens, and reiterated her concerns about a conflict. RR, par. 16, 17, 18; TR 70-
71. When Ms. Sommers said she could not talk about the cemetery case,
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Respondent did not pursue the matter or press her for more information because
she was going to be represented. TR 238-39. Respondent did not ask her about
her duties at the cemetery. TR 76. Respondent told Ms. Sommers he did not
believe there was a conflict of interest. He did not request her to sign a waiver or
consent. TR 72. Respondent did not explain to Ms. Sommers the ramifications of
the conflict or potential conflict posed by the representation. TR 87.
On June 19, 2008, Ms. Sommers faxed and mailed a letter to Respondent
reiterating her concerns. RR, par. 21. In the letter, Ms. Sommers stated: “I’m still
uncomfortable and very concerned that my position may be compromised resulting
from your choice of action.” TFB Exh. 1 (PUB532A0005). By choice of action,
Ms. Sommers meant Respondent’s representation of another client against the
cemetery. TR 75. Ms. Sommers felt that she had been placed in a “very awkward”
position. TR 76. Ms. Sommers did not intend the letter to be a waiver of the
conflict. TR 77. On June 23, 2008, Respondent called Ms. Sommers and told her
that he had received her letter and not to worry because his partner, Katherine
Neal, was handling the Trinity Memorial Gardens case. RR, par. 22, 23.
Respondent told Ms. Somers she needed to “relax, take it easy, and not worry
about anything.” TR 76.
Despite her concerns, Ms. Sommers continued with the representation and
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proceeded to mediation in her personal injury case on June 26, 2008. Respondent
and Jodi Leisure attended the mediation. RR, par. 24. At the mediation, Ms.
Leisure offered to take over representation of Ms. Sommers’s case. Ms. Sommers
did not respond affirmatively to the offer. RR, par. 25, 26. She expressed her
desire that the firm get the best possible recovery for her. The case did not settle at
mediation. TR 78.
On June 30, 2008, David Lonigro, counsel for Trinity Memorial called
Respondent. Mr. Lonigro had been contacted by Lou Friedland, the corporate
representative for Trinity Memorial, who informed him that Lisa Sommers was
Trinity’s manager and that she was represented by Respondent in a another case.
TR 134, 138. Mr. Lonigro told Respondent he thought Respondent had a conflict
because Lisa Sommers was a potential witness. TR 229-30. Following that
conversation, Respondent did not contact Mr. Lonigro for any more information
about Ms. Sommers’s role at the cemetery. TR 141, 230.
On July 2, 2008, Trinity Gardens filed a motion to disqualify Respondent’s
law firm in the Mellette v. Trinity Memorial Gardens case based on a conflict of
interest. RR, par. 27. The motion stated that Lisa Sommers was a witness to the
Mellette case, that she was a client of Respondent with regard to a personal injury
action, and that it was foreseeable that Respondent would depose and/or cross-
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examine her. TFB Exh. 5 (NON532S0025); TR 140. Mr. Lonigro was concerned
that he could not speak freely with a witness who was employed by his client and
was very important to his case. TR 143. A hearing on the motion to disqualify
was scheduled for September 26, 2008. RR, par. 28. Several days before the
hearing, Respondent’s partner, Jodi Leisure, called Ms. Sommers to inform her
about the motion to disqualify hearing. She asked Ms. Sommers to sign an
“informed consent form” consenting to Respondent’s representation of her and Ms.
Mellette. Ms. Sommers refused to sign the consent form. RR, par. 29, 30, 31; TR
80-81.
Trinity Memorial’s motion to disqualify was heard on September 26, 2008.
Ms. Sommers was present in the courthouse but did not attend the hearing. RR,
par. 32, 33. Prior to the hearing, two women from Respondent’s office approached
Ms. Sommers and asked her to sign a consent form. TR 81-82. Ms. Sommers
refused to sign the consent form. RR, par. 35. At the hearing, Trinity Memorial
Garden’s attorney produced an order signed by Ms. Sommers for the disinterment
of Ms. Mellette’s deceased husband. RR, par. 36; R. Exh. 3. The order had been
signed by Ms. Sommers on January 30, 2008. R. Exh. 3. After hearing argument,
the court took the matter under advisement. RR, par. 37. Following the hearing,
Respondent approached Ms. Sommers, asked her to sign a consent form, and told
8
her he would withdraw from the Mellette case. Ms. Sommers replied that she was
unable to make that decision at the time. TR 79-80, 234-236. Before the court
ruled on the matter, Respondent withdrew from representation of both Ms.
Sommers and Ms. Mellette. The defendant, Trinity Memorial, withdrew its motion
to disqualify before the court ruled on the matter. RR, par. 38, 39. Ms. Sommers
hired a new lawyer to represent her in her personal injury case and the case
subsequently settled. TR 80, 83, 101. Ms. Sommers was deposed in the Trinity
Memorial case and questioned about the circumstances of the disinterment and the
role she played. She was also questioned about her training and oversight
responsibilities. TR 84-87.
On October 27, 2008, Lisa Sommers filed an Inquiry/Complaint against
Respondent with The Florida Bar. TFB Exh. 1. After the grievance committee
found probable cause, The Florida Bar filed a Complaint in this Court on February
25, 2010. Respondent was charged with violating Rules 4-1.4(a) (failure to keep
client reasonably informed); Rule 4-1.4(b) (failure to explain matter to extent
reasonably necessary to permit client to make informed decisions regarding the
representation); Rule 4-1.7(a) and (b) (Conflict of interest—Representing Adverse
Interests); Rule 4-1.16(a)(1) (a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client
9
if the representation will result in violation of the Rules of Professional Conduct);
Rule 4-5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers); and
Rule 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another). Respondent filed a Motion to Dismiss, which was
denied after a hearing by order of the Referee dated May 14, 2010. Respondent
filed a Motion for Summary Judgment, which was denied after a hearing by order
of the Referee dated July 30, 2010. The final hearing was held on July 29 and 30,
2010. Respondent was represented by counsel at the final hearing. The Florida
Bar presented the testimony of Lisa Sommers, David Lonigro, Jodi Leisure,
William Hahn, and Respondent. Respondent presented the testimony of Katherine
Neal, Roberta Flowers (by videotape), and testified on his own behalf.
The Bar presented the testimony of William Hahn, a board-certified trial
attorney, as an expert in the area of personal injury and trial work, specifically as it
relates to conflict matters and loyalty to the client. TR 245. Mr. Hahn testified
concerning the importance of the plaintiff’s credibility in a personal injury case,
especially where the plaintiff has a pre-existing injury as in Ms. Sommers’s case.
TR 248-50. It was Mr. Hahn’s opinion that a reasonable lawyer in Respondent’s
position would not have waited until the hearing on the motion to disqualify to
10
withdraw from the representation of Ms. Mellette and Ms. Sommers. Mr. Hahn
stated that, at a time well prior to the hearing, a reasonable lawyer would have
known that his client was the general manager [of the opposing party in the
Mellette case], and that she is going to be the “centerpiece” of his case. TR 256.
Mr. Hahn testified that a reasonable lawyer would have made an inquiry and
resolved the [conflict] issue upon learning the relationship between his existing
client and the party he was suing. TR 261. Mr. Hahn opined that, if Respondent
had obtained the informed written consent of each client, the dual representation
could have continued. TR 260.
Respondent presented the expert testimony of Roberta Flowers, a professor
of professional responsibility at Stetson University College of Law. It was
Professor Flowers’s opinion that Respondent did not violate the Florida Rules of
Professional Conduct. Video Deposition of Roberta Flowers, 12. Professor
Flowers opined that Respondent did not engage in a conflict of interest by
simultaneously representing Ms. Sommers in a personal injury action and Ms.
Mellette in filing a lawsuit against Ms. Sommers’s employer. Depo 14. Professor
Flowers stated her opinion that the relationship between the two clients was not
directly adverse because Respondent was not suing his own client. Depo, 17. She
also opined that there was no “materially limiting conflict” because the factual
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issues of the cases were so dissimilar. Depo, 17-18. In Professor Flowers’s
opinion, not even the “potential” for a conflict arose until the disqualification
hearing when the attorney for the cemetery produced a copy of the disinterment
contract signed by Ms. Sommers. Depo, 21. Professor Flowers testified that
Respondent “had to wait” until the motion to disqualify hearing to determine
whether there was direct adversity based on the need to cross-examine his client.
Depo, 30. It was Professor Flowers’s opinion that Respondent could attack his
client’s credibility in the cemetery case and still represent her in the personal injury
case. Depo, 37.
On October 27, 2010, the Referee made a verbal ruling, recommending a
finding that Respondent did not violate the Rules Regulating The Florida Bar. The
Referee also announced his recommendation that Respondent be required to attend
a professionalism workshop, specifically one pertaining to conflicts of interest. On
November 4, 2010, the Referee issued a Report of Referee, recommending that
Respondent be found not guilty of violating the Rules Regulating The Florida Bar.
The Referee recommended diversion to a practice and professionalism
enhancement program, specifically Ethics School and/or a Professionalism
Workshop. The Report of Referee was considered by the Board of Governors of
The Florida Bar at its December 2010 meeting. The Board of Governors voted to
12
seek review of the Referee’s finding and conclusion that Respondent be found not
guilty of violating the Rules Regulating The Florida Bar and the Referee’s
recommendation of diversion. The Board of Governors voted to seek a suspension
of 30 days and attendance at The Florida Bar’s Ethics School. The Bar does not
challenge the factual findings made by the Referee.
On December 28, 2010, The Florida Bar filed a Petition for Review of the
Report of Referee. Pursuant to Rule 3-7.7, the jurisdiction of this Court is invoked.
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SUMMARY OF THE ARGUMENT
The Referee erred when he recommended that Respondent be found not
guilty of violating the Rules Regulating The Florida Bar. The facts demonstrate
that Respondent represented two clients whose interests were directly adverse. Ms.
Sommers was the general manager of Trinity Memorial Gardens, the cemetery
being sued by Ms. Mellette. She was a witness regarding the alleged improper
exhumation of Ms. Mellette’s deceased husband’s body. When Respondent filed
the Mellette case, Ms. Sommers had been his client for three years in a personal
injury claim. Respondent’s simultaneous representation of Ms. Sommers and Ms.
Mellette presented a substantial risk that his representation of one client would be
materially limited by his responsibility to the other client. Respondent failed to
explain the risks and implications of the simultaneous representation to Ms.
Sommers and obtain her consent.
The facts as found by the Referee establish that Respondent violated Rules
4-1.7(a) and (b) by simultaneously representing two clients whose interests were
adverse. Respondent also violated Rule 4-1.4(b) by failing to explain the conflict
to Ms. Sommers so that she could make informed decisions regarding the
representation. Respondent knowingly engaged in a conflict of interest and did not
fully disclose the possible effect of the conflict to his client. The conflict caused
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injury and potential injury to Ms. Sommers. The case law and Standards for
Imposing Lawyer Sanctions support a 30-day suspension and attendance at The
Florida Bar’s Ethics School as the appropriate sanction for Respondent’s
misconduct.
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STANDARD OF REVIEW
A referee’s findings of fact carry a presumption of correctness. Florida Bar
v. Vannier, 498 So.2d 896, 898 (Fla. 1986). A party challenging a referee’s
findings of fact must demonstrate that those findings are clearly erroneous or
without support in the record. Florida Bar v. Rue, 643 So.2d 1080, 1082 (Fla.
1994).
Where there are no genuine issues of material fact and the only disagreement
is whether the undisputed facts constitute unethical conduct, the referee’s findings
present a question of law that the Court reviews de novo. Florida Bar v. Cosnow,
797 So.2d 1255, 1258 (Fla. 2001).
As to discipline, although a referee's recommendation is persuasive, this
Court does not pay the same deference to this recommendation as it does to the
guilt recommendation because this Court has the ultimate responsibility to
determine the appropriate sanction. Florida Bar v. Kossow, 912 So.2d 544, 546
(Fla. 2005). Generally speaking, this Court will not second-guess a referee's
recommended discipline as long as that discipline has a reasonable basis in existing
case law or in the Florida Standards for Imposing Lawyer Sanctions. Id.
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ARGUMENT
I. RESPONDENT’S SIMULTANEOUS REPRESENTATION OF TWO CLIENTS WITH ADVERSE INTERESTS WAS A CONFLICT OF INTEREST IN VIOLATION OF RULES 4-1.7(a) and (b).
The Referee found that Respondent’s conduct did not violate any of the
Rules alleged in the Bar’s Complaint. The Bar submits that the Referee erred as a
matter of law in concluding that Respondent’s conduct did not violate Rules 4-
1.7(a) and (b). The Referee’s not guilty finding is inconsistent with the Referee’s
factual findings and is not supported by the competent, substantial evidence in the
record. The Referee also erred in shifting the burden to the client to determine
whether there existed a conflict of interest, implying that it is up to the client to
terminate the attorney-client relationship if a conflict exists.
Rule 4-1.7(a) provides:
(a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if:
(1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
The Comment to Rule 4-1.7 points out that Subdivision (a)(1) expresses the
17
general rule that loyalty to a client prohibits undertaking the representation directly
adverse to another client’s interests without the affected client’s consent. “Thus, a
lawyer ordinarily may not act as advocate against a person the lawyer represents in
some other matter, even if it is wholly unrelated.” See Comment to R. Regulating
Fla. Bar 4-1.7.
Rule 4-1.7(b) provides in relevant part:
(b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer my represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; . . . . (4) each affected client gives informed consent, confirmed in writing or clearly state on the record at a hearing. As the Comment states, loyalty to a client is also impaired when a lawyer
cannot consider, recommend, or carry out an appropriate course of action for the
client because of the lawyer’s other responsibilities or interests. “The critical
questions are the likelihood that a conflict will eventuate and, if it does, whether it
will materially interfere with the lawyer’s independent professional judgment in
considering alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client.” See Comment to R. Regulating Fla. Bar 4-1.7.
The facts found by the Referee demonstrate that Respondent’s representation
18
of Priscilla Mellette was directly adverse to the interests of Lisa Sommers. The
factual findings also establish that there was a substantial risk that the
representation of one or both clients would be materially limited by Respondent’s
responsibilities to the other client. The following facts have been established by
the Referee or were undisputed in the proceeding:
1. In November 2005, Lisa Sommers hired Respondent to represent her
regarding personal injuries sustained in an automobile accident. RR, par. 2.
2. In October 2007, Respondent filed a lawsuit on behalf of Ms.
Sommers. RR, par. 3.
3. On March 6, 2008, Respondent was present at Ms. Sommers’s
deposition where she testified she was the general manager at Trinity Memorial
Gardens and oversaw daily operations since 1999. RR, pars. 4, 5.
4. On or before March 26, 2008, Respondent’s law firm was hired to
represent Priscilla Mellette in a lawsuit against Trinity Memorial Gardens for
wrongfully allowing her husband’s body to be disinterred. RR, par. 6. [The fee
agreement is dated March 5, 2008. See R Exh. 8, TR 322.]
5. On June 12, 2008, Respondent filed a lawsuit on behalf of Ms.
Mellette against Trinity Memorial, alleging tortious interference with a dead body
and reckless inflection of emotional distress, and alleging willful and wanton acts.
19
RR, pars. 7, 8, 9.
6. Ms. Sommers was interviewed by the media in her capacity as general
manager of Trinity Memorial regarding the Mellette lawsuit. RR, par. 10.
7. On June 12, 2008, Ms. Sommers learned that Respondent was suing
her employer. RR, pars. 10, 12. She “felt concerns” and she felt there was “some
type of conflict.” RR, p. 2 (additional findings).
8. On June 16, 2008, Ms. Sommers called The Florida Bar. RR, 13.
9. On June 17, 2008, Ms. Sommers met with Respondent and reminded
him of her position as general manger at Trinity Memorial Gardens. RR, pars. 16,
17, 18.
10. Respondent discussed the concerns Ms. Sommers had with her. He
advised Ms. Sommers that he “did not feel” a conflict existed. RR, p. 3 (additional
findings).
11. On July 19, 2008, Ms. Sommers sent Respondent a letter reiterating
her concerns. RR, par. 21.
12. On June 23, 2008, Respondent called Ms. Sommers, acknowledged
receiving her letter, and told her not to worry because his partner, Katherine Neal,
was handling the Trinity Memorial case. RR, pars. 23, 24.
13. On June 26, 2008, at a mediation in her personal injury case attended
20
by Respondent and Jodi Leisure, Ms. Sommers did not respond affirmatively to
Ms. Leisure’s offer to take over her case. RR, pars. 24, 25, 26.
14. On July 2, 2008, Trinity Memorial Gardens filed a motion to
disqualify Respondent’s law firm based on a conflict of interest. RR, par. 27.
15. Before and after the hearing on the motion to disqualify, Ms.
Sommers refused to sign an “informed consent form” consenting to Respondent’s
representation of her and Ms. Mellette. RR, pars. 28, 29, 30, 31, 32, 33, 35.
16. At the September 26, 2008 hearing on the motion to disqualify,
Trinity Memorial Gardens produced an order signed by Ms. Sommers for the
disinterment of Ms. Mellette’s deceased husband. RR, par. 36.
17. Before the court ruled on the motion to disqualify, Respondent
withdrew from the representation of both clients and Trinity Memorial withdrew
its motion. RR, pars. 37, 38, 39.
18. The Referee found that the Bar’s expert, William Hahn, indicated that,
under the circumstances here, a “light bulb of recognition” should have caused
Respondent to recognize a conflict at “a time well prior to the Disqualification
Hearing.” Mr. Hahn found that while Respondent ultimately took the “correct
action,” he “took too long to do it.” RR, p. 2 (additional findings).
19. The Referee found that Respondent stated, “looking back, maybe I
21
should have gotten a waiver or consent.” RR, p. 3 (additional findings).
These findings establish that Respondent simultaneously represented two
clients whose interests were adverse in violation of Rule 4-1.7(a)(1). Respondent
also violated Rule 4-1.7(a)(2) because there was a substantial risk that
Respondent’s representation of one client would be materially limited by his
responsibilities to his other client. Because of her position as general manager at
Trinity Memorial, Ms. Sommers was a witness regarding the alleged wrongful
disinterment of the body of Ms. Mellette’s husband. As a witness, it was highly
likely that Respondent would be required to cross-examine her in his role as
counsel for Ms. Mellette. As Respondent’s own expert testified, one of the ways a
directly adverse conflict can arise is if an attorney is going to be required to cross-
examine his own client. Depo, 19. See ABA Comm. on Ethics and Prof’l
Responsibility, Formal Op. 92-367 (1992). One concern is that confidential
information acquired by the attorney with regard to his client could be used to that
client’s disadvantage when he cross-examined her. Depo, 21. In this case,
Respondent had represented Ms. Sommers for three years in a personal injury case
in which he would be familiar with details of her medical history that might be
used to the disadvantage of his own client in an adverse situation.
As Professor Flowers also pointed out, direct adversity would arise if there is
22
the necessity for a cross-examination that involves attacking the credibility of a
witness who is the attorney’s own client. Depo, 22. The Bar’s expert, William
Hahn, testified that the credibility of the plaintiff in a personal injury case is
“critical.” TR 240, 252. Mr. Hahn testified that in the case against Trinity
Memorial Gardens, the opposing lawyer would be “without hesitation” planning an
attack against not only the person who facilitated what took place, but the people
who are in charge of those people, because that goes to corporate responsibility.
“[T]o reflect the gravity of what took place at Trinity, you would be attacking the
system, and Ms. Sommers was the system.” TR 253. Mr. Hahn opined that a
reasonable lawyer would realize that he would have divided loyalties in that
situation. TR 253.
Ms. Sommers’s position at Trinity Memorial was well-known to
Respondent. He had represented her since November 2005 and her work-related
duties were relevant to her personal injury claim. Respondent was present at Ms.
Sommers’s deposition when she testified regarding her place of employment,
position, and duties. This deposition took place the day after Respondent’s firm
was retained in a high-profile wrongful disinterment case against the cemetery
where Ms. Sommers was employed. On June 12, 2008, Respondent filed a lawsuit
against the cemetery and held a press conference about the case. Ms. Sommers
23
appeared on television being confronted by news reporters. Even if Respondent
did not connect the two representations sooner, the matter was brought directly to
his attention in the meeting with Ms. Sommers on June 17, 2008, following her call
to The Florida Bar.
The Referee did not make specific findings as to the reason he found there
was no conflict of interest, with the exception that he stated he accepted the
opinion of Respondent’s expert based on her training and experience. The Referee
simply found that it was Professor Flowers’ opinion that “Respondent did not
violate the Rules,” and concluded that ultimately there was no conflict. RR, p. 3
(additional findings). The Bar submits that Professor Flowers’s opinion was
incorrect as a matter of law in several respects.
First, Professor Flowers stated that there was no “directly adverse conflict”
because Ms. Sommers was not being sued by Respondent in a personal or
corporate capacity; rather, she was an employee of the corporation being sued.
Rule 4-1.7 does not require that an attorney file suit against a client on behalf of
another client in order for the relationship to be adverse. As the Comment to the
Rule points out, the issue is one of loyalty. A lawyer may not act as an advocate
against a person the lawyer represents in some other matter, even if it is wholly
unrelated. See Comment to Rule Regulating Fla. Bar 4-1.7, supra.
24
Later in her testimony, Professor Flowers recognized that a direct adversity
could arise in the event a lawyer was required to cross-examine his own client. TR
19. She cited ABA Formal Ethics Opinion 92-367, concluding that a lawyer’s
examining the lawyer’s client as an adverse witness, or conducting third party
discovery of a client, will ordinarily present a conflict of interest that is
disqualifying absent consent of one or both clients. On cross-examination,
Professor Flowers acknowledged that a direct adversity would be created by an
attorney attacking the credibility of his or her own client. Depo, 33. She testified
that it is necessary to look at the specific facts to determine whether there would be
the necessity for a cross-examination that involves attacking the credibility of the
witness who is your client. Depo, 22. After reviewing the documents she had
been provided, Professor Flowers concluded that Ms. Sommers had no direct
involvement with the cemetery case and would not have to be cross-examined at
any length with regard to her involvement. Depo, 23. Professor Flowers
concluded that, based on this “limited involvement,” there was no actual conflict,
either directly adverse or materially limiting, i.e., Respondent was not materially
limited in what he could do for either client. Depo, 23-24. The Bar submits that
Professor Flowers’s conclusion is incorrect based on the facts. She acknowledged
that she had not reviewed Ms. Sommers’s deposition in her personal injury case, or
25
the tapes of the media coverage of the cemetery case. Depo, 38, 41. It was this
deposition in which Ms. Sommers stated that she was general manager and in
charge of the day-to-day operations of Trinity Memorial Gardens. TFB Exh. 4.
Professor Flowers opined that, it was not until the hearing on the
disqualification motion that Respondent had enough facts to realize there was even
the potential for a conflict of interest. On the contrary, it was not necessary for
Respondent to see the disinterment order for him to know that Ms. Sommers was
likely to be an adverse witness he would have to depose and/or cross-examine. TR
255-56. Respondent knew that Ms. Sommers was the general manager of the
cemetery. Respondent knew this by the time of the media coverage following the
filing of the lawsuit on June 12, 2008, and, at the latest, by the time he met with
Ms. Sommers on June 17, 2008 and she expressed her concerns to him. As general
manager, Ms. Sommers was likely to be a material witness concerning the
disinterment. In fact, Ms. Sommers was subsequently deposed in the cemetery
case and was asked multiple questions regarding the disinterment, including
whether the next of kin was not properly listed in the records. She was also
questioned about the order she signed, her role in training the family service
advisors who handled the disinterment, and the policies and procedures of Trinity
Memorial. TR 83-87.
26
Finally, the Bar submits that Professor Flowers was incorrect in her opinion
that Respondent could “zealously represent Ms. Sommers in her personal injury
case and still attack her credibility in the cemetery case, and that would not be
detrimental to her.” Depo, 37. Even if Respondent had obtained an informed
consent, which he did not, he could not reasonably believe the he would be able to
provide competent and diligent representation to each affected client. Respondent
could not ethically represent both clients.
Moreover, under Rule 4-1.7(b), Respondent could not reasonably believe
that he could provide competent and diligent representation to each affected client.
A reasonable lawyer in Respondent’s position should have made an inquiry and
resolved the conflict issue upon learning the relationship between the two clients.
Rule 4-1.7(b) also provides that each affected client must give informed consent,
confirmed in writing, or clearly stated on the record at a hearing. It is undisputed
that Ms. Sommers did not consent to the dual representation.
The Referee erred as a matter of law in concluding that Respondent did not
engage in a conflict of interest in violation of Rule 4-1.7. The Referee also erred in
shifting the burden to the client to determine if the attorney should be terminated
due to a conflict of interest. The Referee found that Ms. Sommers terminated a
prior attorney-client relationship because she “wasn’t comfortable” with the
27
representation. The Referee further found that Ms. Sommers contacted The
Florida Bar in June 2008 after she found out Respondent was suing her employer,
but did not call Respondent to express her concerns to him. RR, p. 2 (additional
findings). The Referee found “this to be significant as Ms. Sommers knew or
should have known that she could have terminated the attorney-client relationship
with Respondent, as she had done so previously.” Id. The Referee found that Ms.
Sommers obviously did not feel her “concerns” or her perception of “some type of
conflict” rose to a level requiring termination of Respondent’s services. Id.
The Referee’s findings reflect an erroneous interpretation of the Rules. As
this Court stated in Florida Bar v. Dunagan, 731 So.2d 1237 (Fla. 1999), “it is not
the responsibility of the client or the client’s new attorney to raise the issue of
conflict. The rules require the actual consent of the client after consultation, and as
the comment to rule 4-1.7 states, it is ‘primarily the responsibility of the lawyer
undertaking the [conflicting] representation’ to obtain the necessary consent.” Id.
at 1241. See Comment to Rule Regulating Fla. Bar 4-1.7.
Respondent knew or should have known of the conflict by June 2008 at the
latest. At that point, Respondent was obligated under Rule 4-1.7 to consult with
his clients and obtain their informed consent to the dual representation. If he could
not obtain that consent, he was obligated to withdraw from the representation. As
28
this Court stated in Florida Bar v. Brown, 978 So.2d 107, 112 (Fla. 2008), where
an attorney represented two clients whose interests were directly adverse, the
continued representation of both of them “to any extent whatsoever” was improper.
This Court also held that it was impossible for Brown to ethically represent both
clients because her professional judgment with regard to one or both of them was
materially limited by dual representation. Id.
In finding Brown guilty of violating Rules 4-17(a) and (b), the Court stated:
We have long recognized that an attorney has an ethical obligation to avoid conflicts of interest and to advise the court when one arises. An attorney engages in unethical conduct when she undertakes a representation when she either knows or should know of a conflict of interest prohibiting the representation. The facts as found by the referee were sufficient to alert Brown to an actual or potential conflict of interest between Spillman and Parks, making her representation of both of them improper. The facts establish violations of both rules 4-1.7(a) and (b).
978 So.2d at 112-113 (citations omitted) (emphasis added).
Like Brown, Respondent represented two clients with directly adverse
interests. As in Brown, the facts were sufficient to alert Respondent to an actual or
potential conflict of interest. He could not ethically represent both Ms. Sommers
and Ms. Mellette. The Referee erred as a matter of law in finding Respondent not
guilty of violating Rules 4-1.7(a) and (b).
29
II. RESPONDENT VIOLATED RULE 4-1.4 BY FAILING TO FULLY EXPLAIN TO HIS CLIENT THE IMPLICATIONS AND RISKS OF THE DUAL REPRESENTATION.
The Referee found Respondent not guilty of violating Rule 4-1.4. It is the
Bar’s position that the Referee erred in failing to find that Respondent violated
Rule 4-1.4(b), which provides that a lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the
representation. Respondent failed to explain to Ms. Sommers the risks and
implications of the dual representation to the extent necessary to enable her to
make informed decisions regarding the representation.
The Referee’s finding of not guilty as to Rule 4-1.4(b) is not supported by
the competent substantial evidence in the record. Although the Referee found that
Respondent discussed Ms. Sommers’s concerns with her, the Referee made no
findings that Respondent explained the implications of the dual representation to
Ms. Sommers. The Referee found that Respondent advised Ms. Sommers he “did
not feel” a conflict existed. RR, p. 3 (additional findings). The record evidence
shows that, on the occasions when Respondent spoke with Ms. Sommers, he did
not discuss the nature of the conflict with her and simply told her not to worry
about it. TR 76, 87. On June 17, 2008, Ms. Sommers received a call from
Respondent’s office asking her to come to his office that day “to ease her mind.”
30
TR 70. Respondent met with Ms. Sommers that day and they discussed the
Mellette matter. Respondent told Ms. Sommers he did not believe there was a
conflict. He did not explain anything about the nature of a potential conflict and
how it could affect her case. TR 72, 290. He did not ask her to sign a waiver or
consent. TR 72. He told her there was nothing to worry about. TR 105. Ms.
Sommers was very upset and said she did not want to talk about the cemetery case.
Respondent did pursue the matter. He testified that he was “just not comfortable
with discussing the details” because he assumed that she was represented or was
going to be represented. TR 238-39. After she wrote Respondent a letter
reiterating her concerns, he called and told her she just needed “to relax, take it
easy, and not worry about anything.” TR 76.
Respondent was asked at the final hearing whether he explained to Ms.
Sommers at the June 17, 2008 meeting how a conflict of interest could affect her
case in terms of credibility, loyalty to client, and other considerations. He replied:
“I don’t know if I got into that level of detail with her at that time.” TR 290. He
did not send her anything in writing to explain the implications of the conflict.
Respondent stated, “It was obvious that she did not want to discuss it. So you
know, we brought it up, but we didn’t get into it that much.” TR 290.
Respondent ignored his obligation to fully inform his client of the nature of
31
the conflict and how it would affect her case. This Court should find that
Respondent violated Rule 4-1.4(b).
III. A 30-DAY SUSPENSION AND ATTENDANCE AT THE FLORIDA BAR’S ETHICS SCHOOL IS THE APPROPRIATE SANCTION FOR RESPONDENT’S MISCONDUCT.
The Referee found Respondent not guilty and recommended diversion to a
practice and professionalism enhancement program. Based on the evidence
presented and the factual findings made by the Referee, this Court should find
Respondent guilty of violating Rules 4-1.7(a) and (b), and Rule 4-1.4(b). The Bar
submits that, based on the Standards for Imposing Lawyer Sanctions and the case
law, the appropriate sanction for those violations is a 30-day suspension from the
practice of law and attendance at The Florida Bar’s Ethics School.
The Florida Standards for Imposing Lawyer Sanctions provide a format for
Bar counsel, Referees, and the Supreme Court to determine the appropriate
sanction in attorney disciplinary matters. Standard 4.3, Failure to Avoid Conflicts
of Interest, sets forth the appropriate sanctions in cases involving conflicts of
interest. Standard 4.32 provides: “Suspension is appropriate when a lawyer knows
of a conflict of interest and does not fully disclose to a client the possible effect of
that conflict, and causes injury or potential injury to a client.” The factual findings
in this case show that Respondent knew of the conflict of interest posed by his
32
simultaneous representation of Ms. Sommers and Ms. Mellette, and that he failed
to fully advise Ms. Sommers of the possible effects of that conflict. As previously
discussed, there was the real potential for injury to Ms. Sommers because of the
likelihood that she would be a material witness in Ms. Mellette’s case against her
employer, Trinity Gardens. Respondent’s representation of Ms. Mellette was
likely to require him to depose Ms. Sommers and to cross examine her at trial. The
zealous representation of Ms. Mellette may have required Respondent to question
Ms. Sommers’s credibility.
In addition, the dual representation caused actual harm to Ms. Sommers.
She testified she was placed in a very awkward position that caused her emotional,
physical, and mental distress. TR 76, 82. She felt that her job was on the line.
She had many sleepless nights. She could not speak with anyone about the
cemetery case, even her own attorney (Respondent). TR 82-83. She could not
speak with her boss at Trinity Memorial because she was a client of Respondent
and Respondent was suing the cemetery. Her boss told her he could not speak with
her. TR 83. She could not speak with Trinity Memorial’s attorney, David
Lonigro. Mr. Lonigro would not speak with Ms. Sommers because she was
represented. TR 139.
In addition to the harm caused to Ms. Sommers, Respondent’s conduct also
33
caused harm to the legal profession. Mr. Hahn testified that he was concerned
about the harm to the legal system caused by Respondent’s failure to withdraw in
the face of a conflict of interest. He believed such conduct subjects the legal
profession to disrepute. TR 262-63.
The case law also supports a suspension as the appropriate sanction for
Respondent’s misconduct. This Court has frequently imposed suspensions in cases
where an attorney represents clients with adverse interests. In Florida Bar v.
Brown, supra, the Court imposed a 90-day suspension where Brown represented
two clients with adverse interests in violation of Rules 4-1.7(a) and (b). Brown
represented two clients in separate criminal cases arising out of a traffic stop
during which the officer found a handgun in the center console of the car. Both
clients were convicted felons and both had an interest in the firearm’s possession
being attributed to the other. This Court disapproved the referee’s
recommendation that Brown be found not guilty of violating rules 4-1.7(a) and (b)
(2006 version), holding that the referee’s conclusion was incorrect as a matter of
law. 978 So.2d at 112. Brown was also found guilty of violating Rules 4-1.3 (lack
of diligence), 4-1.4(a) (failing to keep client reasonably informed), and 4-8.4(c)
(misrepresentation). In imposing a suspension, the Court considered that Brown
committed multiple acts of misconduct and that she had no history of prior
34
discipline. The Court relied on Standard 4.32, supra, which provides that a
suspension is appropriate when a lawyer knows of a conflict of interest and does
not fully disclose to a client the possible effect of that conflict, and causes injury or
potential injury to the client. Like Brown, the Respondent in this case knowingly
engaged in a conflict of interest in violation of Rule 4-1.7, and failed to
communicate with his client in violation of Rule 4-1.4. Unlike Brown, Respondent
did not violate Rule 4-8.4(c), a serious violation. Thus, a shorter suspension of 30
days is appropriate in this case.
Florida Bar v. Maurice, 955 So.2d 535 (Fla. 2007), is another case in which
an attorney received a 90-day suspension for engaging in a conflict of interest.
Maurice unnecessarily opened a probate estate. Probate was unnecessary because
most of the deceased's property was either exempt or transferred upon death,
however, Maurice failed to explain this to the heirs. She opened an estate because
she wanted to give the deceased's caretaker an opportunity to purchase the
deceased's condominium. The condominium had already been deeded to the
deceased's son and grandson. Id. at 540. The referee found that Maurice's desire
to help the caretaker conflicted with her duties toward the heirs under the will. Id.
at 539. Maurice's improper actions delayed the transfer of the estate assets, but she
did not profit from her misconduct. In mitigation, the referee considered
35
Maurice’s lack of prior discipline. Id. at 542. This Court disapproved the two-year
suspension recommended by the referee and imposed a 90-day suspension, finding
that Maurice was motivated by "a genuine but misguided desire" to fulfill what she
believed to be the deceased's wishes. Id. Maurice was found guilty of violating
Rules 4-1.1 (competence); 4-1.3(diligence), 4-1.4(a) (communication), 4-
3.2(failure to expedite litigation), and 4-1.7(b) (conflict of interest). Like Maurice,
Respondent engaged in a conflict of interest and failed to explain matters to his
client. Respondent’s conduct warrants a suspension of at least 30 days.
A violation of the conflict of interest rules frequently results in a lengthy
suspension, even in cases where there is no history of prior discipline. For
example in Florida Bar v. Mastrilli, 614 So.2d 1081 (Fla. 1993), an attorney
received a six-month suspension for representing two parties in an automobile
accident case who had adverse interests in violation of Rules 4-1.7(a) and (b). This
Court rejected Mastrilli's argument that he was merely negligent in failing to
discover the conflict of interest. This Court held that Mastrilli either knew or
should have known of the conflict of interest and approved the six-month
suspension. Mastrilli’s conduct was more egregious than that of Respondent
because Mastrilli filed suit against his own client in the same matter, and there was
the potential that his actions would expose one client to a personal liability of up to
36
$50,000. Respondent’s conduct warrants a lesser sanction of a 30-day suspension.
In Florida Bar v. Dunagan, 731 So.2d 1237 (Fla. 1999), this court found
that an attorney violated the conflict of interest rules by representing the husband
in a dissolution of marriage proceeding after having also represented the husband
and wife in a matter involving their joint ownership of a restaurant business.
Ownership of the restaurant was a disputed issue in the dissolution proceeding.
The referee found Dunagan violated rules 4-1.7 and 4-1.9. This Court approved
the recommended sanction of 91 days, considering Dunagan’s record of prior
discipline. This Court emphasized that Rule 4-1.7 requires that the attorney “shall
not represent conflicting interests unless the client consents.” (emphasis in
original). Id. at 1241.
Like the attorneys in the foregoing cases, Respondent was faced with a
situation involving conflicting loyalties to two different clients. Respondent failed
to consult with and obtain his clients’ consent to the dual representation.
Respondent failed to communicate to Ms. Sommers how the conflict could affect
her case. The dual representation not only caused actual harm to Ms. Sommers,
there was a potential for serious harm, which was not explained to her. The
conflict also caused harm to the legal system and the reputation of the profession.
As the district court of appeal emphasized in Morse v. Clark, 890 So.2d 496, 498
37
(Fla. 5th DCA 2004), Rule 4-1.7(a) is based on the ethical requirement that a
lawyer should act with undivided loyalty for his client and not place himself in a
position where a conflicting interest may affect the obligations of the professional
relationship. The court stated:
It is difficult to imagine how a lawyer could appear in court one day arguing vigorously for a client, and then face the same client the next day and vigorously oppose him in another matter, without seriously damaging their professional relationship. Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession. Id. The Bar submits that the intentional nature of Respondent’s conduct,
including his knowing failure to disclose the conflict, weighs in favor of a non-
rehabilitative suspension of 30 days and attendance at The Florida Bar’s Ethics
School.
38
CONCLUSION
The record evidence and the factual findings of the Referee support a finding
that Respondent violated Rules 4-1.7(a) and (b), and Rule 4-1.4(b). This Court
should disapprove the Referee’s finding and conclusion that Respondent did not
violate The Rules Regulating the Florida Bar and find Respondent guilty of
violating the Rules 4-1.7(a), 4-1.7(b), and 4-1.4(b). As to discipline, this Court
should suspend Respondent from the practice of law for 30 days and require
Respondent to attend The Florida Bar’s Ethics School. Respondent should be
assessed the costs of this proceeding.
Respectfully submitted,
_____________________________ Karen Boroughs Lopez Bar Counsel Florida Bar No. 444553 The Florida Bar 4200 George J. Bean Parkway, Suite 2580 Tampa, Florida 33607-1496 (813) 875-9821
39
CERTIFICATE OF SERVICE
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have been provided by UPS Delivery, Tracking Number 1Z E32 77W 30 9143
0110, to The Honorable Thomas D. Hall, Clerk, The Supreme Court of Florida,
500 South Duval Street, Tallahassee, FL 32399-1900; a true and correct copy by
regular U.S. Mail to Scott K. Tozian, Esq., Counsel for Respondent, Smith,
Tozian & Hinkle, P.A., Suite 200, 109 N. Brush St., Tampa, FL 33602; by regular
U.S. mail to Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, FL 32399-2300, all this _______ day of January,
2011.
___________________________________ Karen Boroughs Lopez Bar Counsel
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___________________________________ Karen Boroughs Lopez Bar Counsel
