Florida Bar v. Hayden, 75351

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM; SHAW; GRIMES; OVERTON; GRIMES
• Citation: Florida Bar v. Hayden, 583 So.2d 1016 (Fla. 1991)
• Decision Date: 27 June 1991
• Docket Number: No. 75351,75351
• Parties: THE FLORIDA BAR, Complainant, v. Robert K. HAYDEN, Respondent. 583 So.2d 1016, 16 Fla. L. Week. S463

Page 1016

583 So.2d 1016

THE FLORIDA BAR, Complainant, v. Robert K. HAYDEN, Respondent.

No. 75351.

583 So.2d 1016, 16 Fla. L. Week. S463

Supreme Court of Florida.

June 27, 1991.

Rehearing Denied Sept. 3, 1991.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Susan V. Bloemendaal, Asst. Staff Counsel, Tampa, for complainant.

Richard A. Greenberg, Tallahassee, and Denis M. de Vlaming, Clearwater, for respondent.

PER CURIAM.

This matter is before us upon the referee's report recommending respondent Robert K. Hayden be suspended from the practice of law for six months for violating rules 4-1.2(a) and 4-3.1 of Rules Regulating The Florida Bar. ¹ We approve the findings and recommendations of the referee.

Respondent Robert K. Hayden represented June Ferreri in an uncontested dissolution of marriage action. At the final hearing, Mrs. Ferreri was awarded child support plus lump-sum alimony in the amount of $2,500. Subsequently, Mrs. Ferreri accepted $300 from her ex-husband as a settlement of the lump-sum alimony award.

The referee found that a month or so after the final hearing, respondent contacted Mrs. Ferreri to inquire whether or not she wanted him to petition for contempt of court against Mr. Ferreri for nonpayment of the alimony. Mrs. Ferreri instructed respondent not to proceed with the contempt proceeding. Nonetheless, respondent filed the contempt action for nonpayment of the alimony judgment. The Ferreris learned of the action when Mr. Ferreri was served, and he immediately contacted respondent. The referee found that respondent used the contempt action as leverage to collect his fee. The Fererris testified that respondent advised them that he would not pursue the contempt proceeding if his bill were paid.

The referee recommended that Hayden be found guilty of violating rule 4-1.2(a) ² "for failure to abide by the client's decision not to proceed with the contempt proceedings," and that he be found guilty of violating rule 4-3.1 ³ "for initiating the contempt proceeding without authority from the client." The referee further recommended that Hayden be suspended from the practice of law for a period of six months.

Hayden argues initially that the referee's findings are erroneous and unsupported by the evidence adduced at the hearing. Mr. and Mrs. Ferreri both testified that they advised respondent that the matter had been settled; that Mrs. Ferreri did not want to institute or maintain a contempt action; that respondent filed a motion for contempt nonetheless and told them he would not cancel it until the Ferreris agreed to pay his bill. ⁴ Respondent, on the other hand, contradicted the Ferreris' testimony and denied any allegations of misconduct.

A referee's findings of fact are presumed to be correct and will be upheld unless clearly erroneous or lacking in evidentiary support. The Fla. Bar v. Colclough, 561 So.2d 1147, 1149-50 (Fla.1990). The record clearly supports the essence of the referee's findings. ⁵ While the testimony is conflicting, the referee is charged with the responsibility of assessing the credibility of witnesses based on their demeanor and other factors. See The Fla. Bar v. Bajoczky, 558 So.2d 1022, 1023-24 (Fla.1990). We cannot say the referee's findings are clearly erroneous.

Alternatively, Hayden argues that a six-month suspension is too harsh a punishment in this case. In recommending discipline, the referee considered Hayden's age, years of experience, and prior disciplinary history. Under the circumstances presented, we approve the referee's recommendation of a six-month suspension. This is not an instance of a momentary lapse or negligent action. Respondent pursued contempt proceedings in derogation of his client's wishes and after being advised that a settlement had been reached. He did so to use the legal system in an improper attempt to effectuate the recovery of his own fee. The intentional nature of respondent's conduct, coupled with the selfish motivation which prompted the filing of a frivolous proceeding, combined to make this misconduct far more egregious than a negligent act.

Moreover, this is not respondent's first disciplinary action. Respondent was privately reprimanded in 1981 for misconduct arising out of five separate disciplinary complaints, which were consolidated. Disciplinary proceedings were again instituted against respondent in 1986 for violations of disciplinary rules relating to the handling of funds and property belonging to clients. Respondent was suspended for thirty days for these violations. See The Fla. Bar v. Hayden, 490 So.2d 940 (Fla.1986).

Accordingly, we approve the referee's report and suspend and enjoin respondent from the practice of law for six months. This suspension is effective thirty days from the date this opinion is filed in order to protect respondent's clients and to allow him to close out his practice. Respondent shall accept no new business from the date this opinion is...