Fla. Bar v. Gass
| Decision Date | 18 December 2014 |
| Docket Number | No. SC12–937.,SC12–937. |
| Citation | 153 So.3d 886 |
| Parties | THE FLORIDA BAR, Complainant, v. Daniel Gary GASS, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, the Florida Bar, Tallahassee, FL and Adria E. Quintela, Staff Counsel, and Ghenete Elaine Wright Muir, Bar Counsel, the Florida Bar, Sunrise, FL, for Complainant.
Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, FL, for Respondent.
We have for review a referee's report recommending that respondent Daniel Gary Gass be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for sixty days. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, we approve the referee's findings of fact. We also approve the referee's recommendation that Gass be found guilty of violating Bar Rules 4–1.3 (Diligence), 4–1.4(a)(3), and 4–1.4(a)(4) (Communication; Informing Client of Status of Representation), and 4–8.4(d) (Misconduct); however, we disapprove the referee's recommendation that Gass be found in violation of Bar Rule 4–1.4(a)(5) (Communication; Informing Client of Status of Representation). We also disapprove the referee's recommended sanction, a sixty-day suspension. Given Gass's failure to diligently act on behalf of his clients and to keep them informed as to the status of their case, and considering the harm his actions caused to the clients, we conclude that a one-year suspension is appropriate.
In May 2012, The Florida Bar filed a complaint against Gass, alleging that he engaged in misconduct in violation of the Bar Rules. A referee was appointed to consider the matter. Following a hearing, the referee submitted her report for the Court's review, in which she made the following findings and recommendations.
In April 2010, Gass was hired by two clients, a married couple, to handle several legal issues pending against them, as well as against their family-owned business. The most significant of these was a civil case pending in the circuit court that was related to an outstanding debt that the clients and their company owed to a third party, who was the plaintiff in the civil case. By the time Gass first met with the clients in April, a default judgment had been entered against them, and the plaintiff was attempting to collect the judgment.
The evidence presented to the referee indicated that the clients received a subpoena for a deposition scheduled for May 25, 2010; the subpoena also directed the clients to produce certain documents at the deposition. The clients informed Gass of the subpoena and provided him with a copy. However, they testified that Gass advised them not to attend. Based on this advice, the clients did not appear for the deposition. Subsequently, counsel for the plaintiff filed a petition for an order to show cause. On June 21, 2010, the circuit court entered an order to show cause, holding the clients in contempt. The order allowed the clients to purge the contempt by appearing at a rescheduled deposition on June 22. The clients attended this deposition, but Gass did not.
Gass formally entered a notice of appearance in the civil case in July 2010.
However, the referee stated: Notably, once Gass filed the notice of appearance, the clients no longer received any correspondence directly from the plaintiff, and they relied on Gass to keep them informed.
At their deposition on June 22, it appears that the clients produced some, but not all, of the documents requested from them. Consequently, in July 2010, counsel for the plaintiff filed a second petition for an order to show cause. The referee found that Gass received this petition, but he did not inform the clients. On August 23, 2010, the circuit court entered a second order to show cause, ordering the clients to produce the remaining documents. The order set a show cause hearing for October 4, 2010, and directed the clients to produce the documents at least five days before the hearing. The referee found that Gass received this order, but he again failed to notify the clients or inform them of the show cause hearing. Thus, the clients did not attend the hearing, and Gass did not attend the hearing on the clients' behalf. During the proceedings before the referee, Gass maintained that the clients were aware of the show cause hearing and that they directed him not to attend. The referee expressly found that this testimony was not credible.
On January 10, 2011, the circuit court entered a “Renewed Order Regarding Hearing on Order to Show Cause on October 4, 2010” (Renewed Show Cause Order). On February 8, 2011, the court entered an “Amended Renewed Order Nunc Pro Tunc as of January 10, 2011, Regarding Hearing on Order to Show Cause on October 4, 2010” (Amended Renewed Show Cause Order). The clients were personally served with the orders. The Amended Renewed Show Cause Order gave the clients ten days from the date of service to provide all of the documents requested. The order warned that they would be incarcerated if they did not produce the documents.
When the clients received the Renewed Show Cause Order, they sent a letter to Gass's secretary. In the letter, the clients stated that they believed they had provided all of the documents they had available, and they asked Gass to advise them how to proceed. Gass did not respond to the letter; however, the clients testified that they did speak with his secretary, and she indicated Gass was addressing the issue.
In his testimony before the referee, Gass maintained that he repeatedly warned the clients that if they did not provide the documents requested by the plaintiff, they could be incarcerated for contempt. However, the referee found Gass's testimony was “completely lacking in credibility,” and he did not produce any records of correspondence, telephone conversations, or meetings where he provided this advice. Gass also maintained that the clients received copies of the circuit court's Renewed Show Cause Order and Amended Renewed Show Cause Order, and they should have been aware of the potential for their arrests. The referee found that Gass's expectation that his clients interpret a legal document on their own indicated “a callous indifference to his clients and is contrary to his ethical obligations as an attorney.”
In February 2011, the circuit court issued capias and bench warrants for the clients. Although Gass gave conflicting testimony as to whether he received copies of the warrants in advance and whether he warned the clients of their impending arrest, the referee found no credible evidence that Gass attempted to communicate with the clients at this crucial time. On February 22, 2011, the clients were arrested and taken to jail. After their arrests, Gass did take action to secure their release. He filed a personal bankruptcy action on their behalf (staying the civil case), as well as an emergency motion to strike the capias and bench warrants. The motion was granted, and the clients were eventually released. One client spent three days and two nights in custody, and the other client spent three days and three nights in custody. Both clients testified that their incarceration was very traumatic and caused significant emotional anguish.
Based on these facts, the referee recommended that Gass be found guilty of violating Bar Rules 4–1.3 (); 4–1.4(a)(3) (); 4–1.4(a)(4) (); 4–1.4(a)(5) (); and 4–8.4(d) ().
The referee found two aggravating factors in this case: Gass had a prior disciplinary history, having received a public reprimand in 2011 for violations of the trust account rules; and Gass had substantial experience in the practice of law. Additionally, the referee found five mitigating factors: Gass lacked a selfish or dishonest motive for his actions; he made timely, good faith efforts to rectify the consequences of his misconduct; Gass cooperated fully and made free disclosure to the disciplinary board or exhibited a cooperative attitude during the disciplinary proceedings; Gass was of good character or reputation; and Gass exhibited remorse for his misconduct.
As to the sanction, the referee recommended that Gass be suspended from the practice of law for sixty days. The referee also awarded costs to the Bar in the amount of $5,719.24.
The Bar filed a notice of intent to seek review of the report of the referee, urging the Court to disapprove the referee's recommended sanction and instead impose a one-year suspension. Gass filed a cross-notice, challenging the referee's recommendations as to guilt as well as the recommended sanction.
We first address the referee's recommendation that Gass be found guilty of violating Bar Rules 4–1.3, 4–1.4, and 4–8.4(d). To the extent that Gass challenges the referee's findings of fact, the Court's review of such matters is limited, and if a referee's findings of fact are supported by competent, substantial evidence in the record, this Court will neither reweigh the evidence nor substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000) ; see also Fla. Bar v. Jordan...
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...in a bench warrant being issued in the Jennings case for her client and her client's incarceration for several days. In Fla. Bar v. Gass, 153 So.3d 886 (Fla. 2014), an attorney, among other things, advised his clients to not comply with a subpoena to attend a deposition, failed to attend a ......