Fla. Bar v. Head
| Decision Date | 15 March 2012 |
| Docket Number | No. SC10–1175.,SC10–1175. |
| Citation | 84 So.3d 292 |
| Parties | THE FLORIDA BAR, Complainant, v. Koko HEAD, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, and Carlos Alberto Leon, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
Koko, Head, pro se, St. Johns, FL, for Respondent.
We have for review a referee's report recommending that Koko Head be found guilty of professional misconduct and sanctioned by an admonishment with probation. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's recommendations as to guilt and award of costs. For the reasons discussed herein, we find that Respondent acted deliberately or knowingly and therefore disapprove the referee's finding that Respondent acted negligently. We disapprove the referee's finding that Respondent's misconduct constitutes minor misconduct. We also disapprove the referee's recommended sanction of an admonishment with probation and, instead, impose a ninety-one-day suspension. We approve the referee's recommendation of imposing probation for one year, which shall commence upon Respondent's reinstatement to The Florida Bar. Further, we approve the referee's recommendation that Respondent shall complete at least five hours of continuing legal education by attending The Florida Bar's Ethics School and also a Florida Bar professionalism course.
The Florida Bar filed a complaint against Respondent, Koko Head, which consisted of two counts. A referee was appointed, who held hearings and made the following findings and recommendations.
Count I, The Commercial Tenant Dispute. Chris Johnson and his attorney, Margaret Wharton, filed Bar complaints against Respondent based on events that transpired during a fiercely contested commercial tenant eviction. Wharton is Respondent's opposing counsel and Johnson is a third party adverse to Respondent's client. In this count, three areas of Respondent's conduct were examined.
First, Wharton's client, Johnson, traveled to the leased premises on March 19, 2009. The premises were previously occupied by the defaulting tenant, Nations Fence (Nations). Johnson and his company, Superior Fence & Rail of North Florida, were competitors of Nations but were negotiating to purchase Nation's assets, fixtures, inventory, and current job contracts. Johnson went to the premises to pick up "furniture, fixtures, equipment and inventory." He had a letter signed by the insolvent tenant identifying him "as an authorized agent" of the tenant. Johnson asserts that Respondent illegally and unethically prevented him from removing items from the leased premises, as Respondent claimed a landlord's lien for his client.1
At the same time Nancy Allen, who was an employee of the defaulting tenant, Nations, visited the leased premises to retrieve business records to respond to a sales tax audit. Allen testified that she told Respondent and the landlord, James Lucas (who was Respondent's client), that she needed the books and records for the audit. Allen stated that both of them did not permit her to take the items.
The facts were unclear as to whether the landlord, Nations, or Johnson had a superior interest to the furniture, fixtures, or inventory in the leased premises. The referee noted that Nations was in default of the lease and concluded that the landlord had a statutory lien on the tenant's property that attached when the property was brought onto the premises. Also, the referee stated that the landlord's lien was possessory (the landlord would have lost his lien if the property was removed from the premises), so Respondent's client had a direct interest in preserving his landlord's lien and preventing the removal of property from the leased premises. On that date, Respondent prevented everyone from removing any property from the premises. The referee found that Respondent did not commit any ethical misconduct by preserving the status quo until matters could be reviewed by a court.
The Bar alleged that Respondent violated Rules Regulating the Florida Bar 4–3.3(a), regarding candor towards the tribunal, and 4–8.4(c), regarding dishonesty, fraud, deceit, or misrepresentation. Before the referee, the Bar contended that Respondent misrepresented that he made certain business records of the defaulting tenant available to the defaulting tenant's employee, Allen, on March 19, 2009, when he in fact denied the tenant access to those records on that date. The Bar asserts that the misrepresentation appears in Respondent's Affidavit of Compliance that he filed with the court in the eviction case. Respondent denied the Bar's allegation and testified before the referee that he expressly made the records available to the defaulting tenant on that date.
Allen, the defaulting tenant's comptroller, testified that she arrived about 9:00 a.m. to pick up the files needed for the tax audit. Allen's employer, the defaulting tenant, had asked her to retrieve the files. Allen drove to the leased premises in her car with her husband. Another Nations employee drove a truck to help transport the files. Allen brought banker's boxes so she "could at least get the '08 job files so I could try to configure or put together sales tax reports for later '07, early '08." When she arrived, she stated that she was there to gather the files, but the landlord denied her access. Allen testified that she was there through the lunch hour until about 2:30 or 3:00 in the afternoon, waiting almost six hours to retrieve the records. She ultimately told the truck driver to leave, knowing that she could take a significant number of files in her car. When Respondent arrived at the premises, he did not allow Allen to remove any files.
Whether Respondent improperly denied Allen access to the corporate books and records is not the issue in this count. The disciplinary issue is whether Respondent misrepresented those facts in his Affidavit of Compliance filed with the court on March 27, 2009. In the affidavit, Respondent asserted that he "told her she could take all the files." Respondent maintains that Allen's contentions are false. The referee found Respondent's testimony on this issue not credible and noted that Respondent's testimony directly conflicts with the plain language of an email he sent to Allen that evening.2 Accordingly, Respondent's statement in the Affidavit of Compliance is inaccurate and untrue. The referee recommended finding Respondent guilty of violating Rule Regulating the Florida Bar 4–3.3 for filing the inaccurate and untruthful affidavit with the court.
Second, Wharton contended that Respondent misrepresented whether a complaint for distress for rent had actually been filed on March 19, 2009, and used that misrepresentation to his client's benefit. The referee found that Respondent prepared a letter purporting to show a case number for the landlord's distress proceedings, but at the time the proceedings had not been filed.
The letter contained a case number purporting to be the case number for the distress proceedings, but the case number had nothing to do with the landlord tenant matter. In fact, the distress proceedings had not been filed when the letter was issued. Although Respondent claims the incorrect case number was a simple clerical mistake, no case number could have been provided because the case was not yet filed. The referee found that Respondent provided a fictitious case number in the letter to create a tactical benefit to protect the landlord's lien.
Respondent testified that he dictated the March 19, 2009, letter. Respondent then went to the premises and, to prevent access to the property, brought the letter which inadvertently contained the false case number. The referee did not accept Respondent's testimony about how the false information was placed in the letter, i.e., that his staff had mistakenly typed it and he simply had not noticed. This is not a situation where an old document was modified for a new purpose and the wrong case caption was carried over accidentally. The referee found that the only reason the information was on the letter was to make it appear as though a case had been filed that authorized Respondent's denial of access to the premises.3 The referee recommended finding Respondent guilty of violating Rule Regulating the Florida Bar 4–4.1 by posting the letter on the leased premises. The referee also stated:
Third, Wharton stated that Respondent failed to timely communicate about and comply with court rulings. The referee found that Respondent was sometimes difficult to deal with, but his conduct did not rise to the level of flagrant and repeated unprofessional conduct necessary to violate the Bar rules. Ultimately, the referee concluded that Also, the Bar argued that Respondent engaged in misconduct that was part of a conspiracy to convert the tenant's business opportunity to the landlord. The Bar contended that Respondent and the landlord would not turn over the business assets and inventory to Johnson, or the books and records of the business to Allen, because the landlord needed both to steal the tenant's business.
The referee noted that this theory may be the crux of Wharton's...
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