Inquiry Concerning Davey
| Decision Date | 13 October 1994 |
| Docket Number | No. 93-62,No. 82328,93-62,82328 |
| Citation | 645 So.2d 398 |
| Parties | 19 Fla. L. Weekly S514 Inquiry Concerning A Judge, re: P. Kevin DAVEY. |
| Court | Florida Supreme Court |
Joseph J. Reiter, Chairman and Ford L. Thompson, General Counsel, Tallahassee, and Charles P. Pillans, III of Bedell, Dittmar, DeVault & Pillans, P.A., Jacksonville, for petitioner.
Richard C. McFarlain, Charles A. Stampelos, Harold R. Mardenborough and Christopher Barkas of McFarlain, Wiley, Cassedy & Jones, P.A., Tallahassee, for respondent.
Robert P. Smith, Tallahassee, amicus curiae.
Jimmy Hatcher, Bristol, amicus curiae.
We have for review a recommendation of the Judicial Qualifications Commission that Judge P. Kevin Davey be removed from office. We have jurisdiction. Art. V, Sec. 12, Fla. Const. Based on this record, we impose a public reprimand.
Judge P. Kevin Davey was a partner in the law firm of Douglass, Davey, Cooper & Coppins, P.A. (the firm), prior to becoming a judge. In the late spring of 1984, he announced to the firm's members that he had decided to run for a vacant seat as judge of the Circuit Court of the Second Judicial Circuit. The shareholders subsequently met and agreed on the terms of Davey's separation from the firm and the disposition of his cases.
The shareholders of the firm agreed on June 6, 1984, that Davey would cease to be a partner after June 30, 1984, and that all members would confer "ASAP" to inventory his contingent fee cases to determine the percentage of completion. Davey would be paid on a pro-rata basis on all cases partially completed by June 30; those cases on which he performed no work by that date would be reassigned. Davey and Douglass could not agree, however, on the amount Davey was to be paid for his share in the ownership of the building housing the firm. Davey and Douglass disagreed vehemently on this topic and this caused Davey's relationship with the firm to rapidly deteriorate. The firm ultimately presented Davey with a "lock-out" letter on September 1, 1984, delivered to Davey's doorstep and discovered by his children. The letter was signed by the partners and advised Davey that he was being expelled from the firm, that he would lose his health and malpractice insurance, and that the locks to his office would be changed. This issue of Davey's share in the building was ultimately resolved in Davey's favor in a civil lawsuit.
Davey was elected judge on September 4, 1984, with his term to begin on January 8, 1985. The members of the firm entered into a second termination agreement on September 20, 1984, wherein Davey agreed that he would "take responsibility for completing or reassigning to other attorneys within the firm or other qualified attorneys outside the firm all cases he was handling as of June 6, 1984, and afterwards."
Nine years after Davey left the firm, the Judicial Qualifications Commission (the Commission) filed the present charges against him alleging violations of Canons 1 1 and 2A 2 of the Florida Code of Judicial Conduct based on his handling of two cases during the breakup of the firm.
John Cooper, a member of the firm, testified that he and two other members of the firm, Michael Coppins and Tom Powell, met with Davey in the first two weeks of November 1984 to go over Davey's case list. When they came to the Bryant case, Davey said that the case was not a good case, that he had discussed it with the client, that the client had decided not to file suit, and that Davey was going to close the file. Cooper's testimony was corroborated by Coppins. Evidence adduced before the Commission showed that in August and September 1984, Davey corresponded with the adjusters for the insurer, and in October a settlement of $24,000 was offered and accepted by Davey, who had the check made out to himself and mailed to his home. Upon receipt of the check, Davey executed a release and closing statement on October 31, 1984. The settlement check was negotiated through Davey's personal account and a fee of $8,000 was deposited in his account pursuant to his agreement with Bryant.
Members of the firm learned of Davey's disposition of the Bryant case by happenstance and decided to confront him. Cooper testified that at a meeting on November 21, 1984, he and Davey again went over Davey's case list and when they reached the Bryant case, Davey responded the same as before--that it was not a good case, that the client was not pursuing it, and that he was closing the file. According to Cooper, when he presented Davey with a copy of the negotiated check, Davey admitted that he had concealed the case and said that he had done so because he was afraid that the firm would not honor its termination agreement. Davey said that he was holding the money as security.
Davey's testimony concerning the Bryant case is basically similar to Cooper's except for the following explanations. According to Davey, the initial meeting concerning the Bryant case took place not in November but in July 1984, shortly after the June termination agreement calling for a meeting on Davey's cases "ASAP." At that meeting, Davey told Cooper and Coppins that the case was a poor one because he was having difficulty in obtaining Bryant's medical records and in finding an expert to establish causation. Cooper suggested that Davey refer the case to an outside attorney for disposition. Davey tried unsuccessfully several times to contact the outside attorney to give him the case, and was surprised when the adjuster eventually called and offered $24,000 in settlement. Davey testified that at the second meeting with the partners, the partners burst into the room and accused him of stealing. He did not recall telling the partners at that time that it was a bad case or that he kept the money as security. He testified that he did not disclose the case to the firm because he believed the firm had abandoned it and that if the partners found out about the fee they would want a part of it. Davey ultimately paid the firm its share, approximately $1,400, on December 20, 1984.
Carol Breyer was severely injured in an accident and agreed in June 1982 to have the firm represent her. Because the tortfeasor's insurance policy was limited to $10,000, it was clear that the bulk of the recovery would come from the uninsured motorist (UM) claim. The claim against the tortfeasor was settled in June 1983 for $10,000. Davey removed portions of the office file relating to the UM claim and closed the file on August 6, 1984, by filling out a "Closed File Check List" and signing his secretary's initials.
Davey subsequently entered into negotiations between September 18 and December 13 with the adjuster representing the UM carrier. The adjuster wrote Davey a letter dated December 6, addressed to Davey's home, in which the adjuster made a settlement offer of $127,500. Davey accepted the offer and asked that the check be mailed to his home. The check was mailed on December 13 and Davey took it to the firm's bank on December 21; it was collected and credited to the firm's account on December 31. The Commission found that the check was made payable to the firm and that this alone foiled Davey's attempt to convert the entire fee.
Cooper, Coppins, and Douglass testified that they met with Davey at some time between November 26 and December 21 to discuss Davey's failure to disclose the Bryant case noted above, and that at that meeting Douglass specifically asked Davey, "Are there any other cases like the Bryant case that we should know about?" Davey replied, and did not mention the Breyer case. Cooper testified that he first learned of the Breyer case on December 21 when Davey approached him at a social function and told him that he had settled the case for $127,500, which should produce a fee of about $40,000. Cooper at first testified that he was uncertain if he ever saw the settlement check, but later said that he saw a copy and that it was payable to the firm. Douglass testified that he first learned of the case when the bank called him concerning the settlement check. Douglass testified that he too was uncertain if he ever saw the check, but later said that he believed he did.
Davey testified that he signed his secretary's initials to the file, but said that he had done so on other occasions and did so here because the $10,000 tortfeasor claim was completed. He concealed the UM portion of the case from the firm in order to "keep my options open," and contended that the check was made out to himself and that if he had intended to convert the entire fee he could easily have negotiated the check through his personal account.
After hearing testimony and accepting evidence, the Commission found that Davey intended to convert to himself the entire fee in both the Bryant and Breyer cases:
22. With respect to the Emma Bryant case, the Commission finds that the evidence is clear and convincing that Judge Davey intended to convert the entire Bryant fee to himself, that Judge Davey misrepresented the merits and value of the Bryant case to Messrs. Cooper and Coppins, and that, even if the first meeting to discuss Judge Davey's cases occurred in July 1984, Judge Davey nevertheless misrepresented the case to Cooper in November 1984 after he had settled the case and negotiated the draft through his personal account. The Commission rejects Judge Davey's claim that the Firm had "abandoned" the Bryant case because any abandonment was based upon a misrepresentation of the merits and value of the case. In any event, after it was apparent to Judge Davey that the insurance carrier was seeking to settle the case and, in fact, had offered to settle the case for $24,000, Judge Davey had an affirmative responsibility under the termination agreement with the firm to share that information and...
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