Fla. Bar v. Whitney

• Decision Date: 05 December 2013
• Docket Number: No. SC11–1135.,SC11–1135.
• Citation: 132 So.3d 1095
• Parties: THE FLORIDA BAR, Complainant, v. Max Ricardo WHITNEY, Respondent.
• Court: Florida Supreme Court

132 So.3d 1095

THE FLORIDA BAR, Complainant,

v.Max Ricardo WHITNEY, Respondent.

No. SC11–1135.

Supreme Court of Florida.

Dec. 5, 2013.

John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Frances R. Brown–Lewis, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.

Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, FL, for Respondent.

PER CURIAM.

We have for review a referee's report recommending that Respondent Max Ricardo Whitney 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 ninety days. The Florida Bar has filed a “Notice of Intent to Seek Review of Report of Referee” and Respondent has cross-petitioned, contesting the referee's recommendation of guilt or, alternatively, requesting that the sanction be disapproved. We have jurisdiction. Seeart. V, § 15, Fla. Const. We approve the findings of fact and recommendations of guilt, and disapprove the referee's recommended sanction of a ninety-day suspension. We conclude that Mr. Whitney's misconduct warrants a one-year suspension from the practice of law in Florida. We also conclude that the referee abused his discretion in denying a portion of the costs sought by the Bar.

FACTS

The Florida Bar filed a Complaint against Respondent based upon misconduct arising from Respondent's representation of Dr. Michael G. Hill and Ms. Leila Mesquita de Oliveira, and Respondent's conduct in response to a lawsuit filed by Dr. Hill against Respondent. The Bar alleged that Respondent violated the following Bar Rules, as they existed at the time of the complaint: 3–4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise may constitute cause for discipline); 4–1.1 (competence); 4–1.3 (diligence); 4–1.4(a) (keeping client reasonably informed and promptly comply with requests for information); 4–1.4(b) (explaining a matter to client to extent reasonably necessary to permit informed decision); 4–1.16(d) (failing to take steps to the extent reasonably practicable to protect a client's interest upon termination of representation); 4–3.3(a) (“A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) permit any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures.”); 4–3.4(a) (a lawyer shall not unlawfully obstruct anotherparty's access to evidence); 4–3.4(b) (a lawyer shall not fabricate evidence); 4–3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); 4–3.4(d) (a lawyer shall not make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request); 4–8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4–8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

A referee was appointed to hold hearings and provide a report to the Court. The referee made the following findings of fact and recommendations.

On January 19, 2004, Dr. Hill hired Respondent to provide immigration and legal advice. At their initial meeting, Respondent was advised that Ms. de Oliveira, who was present at the meeting, was a native of Brazil and was in the United States illegally for the third time. Respondent was informed that she had received a letter from the United States Department of Justice banning her from the country for twenty years because of her two previous illegal entries into the United States. Respondent was further advised that Dr. Hill intended to marry Ms. de Oliveira, but that they were not engaged and Dr. Hill had only known her since November 2003 when she moved into his house.

Based upon their meeting, a fee agreement was executed, which provided for a flat fee of $15,000, plus a $5,000 deposit for costs. In the agreement, Dr. Hill was referred to as the client. The fee contract provided that Respondent would represent Ms. de Oliveira “in regard to all matters pertaining to her immigration status” and that Respondent's obligations under the contract would terminate “upon decision of the Office of the Attorney General granting or denying permission for Leila Mesquita de Oliveira to reenter the United States.” Dr. Hill provided Respondent with two checks, one dated January 26, 2004, in the amount of $10,000, and one dated February 6, 2004, in the amount of $9,365. Dr. Hill also paid directly for an airline ticket for Respondent to travel to Brazil. Respondent deposited the checks into his personal checking account, and used Dr. Hill's funds “to pay his personal bills because respondent was experiencing financial problems at the time.”

In early 2004, Respondent twice traveled to Brazil to allegedly research the requirements for Dr. Hill and Ms. de Oliveira to marry in Brazil. The referee found that this information was easily obtained without leaving the country. Respondent also claimed that one of the trips to Brazil was to obtain information on rental properties for Ms. de Oliveira and to verify her Brazilian documents. Because the location in which Respondent indicated that he found a residence for Ms. de Oliveira was in an area other than where she lived in Brazil, the referee concluded that that trip was for a purpose other than for his client's case. In September 2004, Respondent took possession of Ms. de Oliveira's Brazilian passport, which she advised him was a falsified document, as well as other original Brazilian documents. The referee found that Respondent “took no further meaningful action with respect to Ms. de Oliveira's immigration matter.”

Dr. Hill contacted Respondent in late 2004 or early 2005 after failing to receive any communication from Respondent since hiring him in January 2004. Respondent advised Dr. Hill that he had not initiated the process to have Ms. de Oliveira remain in the United States or to reenter legally so that they could be married in the United States. Respondent advised Dr. Hill that Ms. de Oliveira needed to marry Dr. Hill in Brazil, and that he would only proceed further after Dr. Hill paid an additional fee of between $40,000 and $60,000. Dr. Hill terminated Respondent's services and demanded a full refund of his fee and costs, as well as the return of Ms. de Oliveira's documents. Respondent denied Dr. Hill's request, stating that he had earned the fees and costs paid. Respondent failed to provide an accounting to Dr. Hill, and failed to timely return Ms. de Oliveira's documents. Ms. de Oliveira executed a letter dated February 22, 2005, demanding return of her original documents. Respondent did comply with the written request from Ms. de Oliveira, who returned to Brazil in or around April 2005.

In July 2005, Dr. Hill filed a civil lawsuit against Respondent alleging breach of contract, legal malpractice, and unjust enrichment. ( Hill v. Whitney, Case No. 05–CA–5999). Dr. Hill was represented by attorney Bonnie Jackson and Respondent was pro se. The referee found that “[R]espondent engaged in a course of conduct where he was uncooperative in coordinating the scheduling of hearings.”

In an order entered on December 12, 2005, the trial court directed Respondent to produce responsive documents on or before December 19, 2005. Respondent failed to comply with that order and failed to appear for his duly noticed deposition on December 21, 2005. At no time did Respondent contact opposing counsel or file a notice of unavailability for his deposition. Not until January 4, 2006, did Respondent produce the documents sought by the request for production dated September 20, 2005, and which were ordered to be produced by December 19, 2005. Respondent did not produce all of the documents sought. On January 18, 2006, a hearing was held on Ms. Jackson's second motion to compel. Respondent was admonished by the court and advised to fully cooperate with discovery. At Respondent's deposition on January 27, 2006, Ms. Jackson learned of the outstanding documents when Respondent arrived with a client file containing documents that he had not previously produced pursuant to the request for production. Further, Respondent produced documents that were redacted without asserting an objection or otherwise indicating that a redaction had been made.

Respondent failed to produce Visa credit card statements or receipts that were responsive to Dr. Hill's first set of interrogatories and that the circuit court had ordered him to produce. Ms. Jackson sought such records to document the expenditures Respondent made in Brazil that had been allocated to Dr. Hill's cost deposit. In answering Dr. Hill's request for production, Respondent stated that he did not advertise, when, in fact, he had a website which was discovered by Ms. Jackson.

The referee found that Respondent testified falsely and deceptively at his deposition. While he testified that the name of his law firm was “Max R. Whitney, P.A.,” Respondent failed to disclose that his website used the name “Max Whitney & Willie Jones Advogados Associados.” Moreover, the business card provided to...