The Fla. Bar v. Patrick

• Decision Date: 23 June 2011
• Docket Number: No. SC09–2057.,SC09–2057.
• Citation: 67 So.3d 1009
• Parties: THE FLORIDA BAR, Complainant,v.Timothy Allen PATRICK, Respondent.
• Court: Florida Supreme Court

67 So.3d 1009

THE FLORIDA BAR, Complainant,

v.Timothy Allen PATRICK, Respondent.

No. SC09–2057.

Supreme Court of Florida.

June 23, 2011.

John F. Harkness, Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Troy Matthew Lovell, Bar Counsel, The Florida Bar, Tampa, FL, for Complainant.David A. Maney and Lee S. Damsker of Maney, Damsker, Jones, and Kuhlman, P.A., Tampa, FL, for Respondent.PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Timothy Allen Patrick. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed herein, we approve the referee's findings of fact, recommendations of guilt, recommended sanctions, and award of costs to The Florida Bar.

FACTS

In November 2009, The Florida Bar filed a complaint against Respondent alleging that he violated Rules Regulating the Florida Bar 3–4.3 (general misconduct); 4–1.8(e) (advancing costs of litigation to client); and 4–8.4(c) (conduct involving dishonesty, deceit, fraud, or misrepresentation). A referee was appointed who held hearings, considered evidence, and submitted a report to the Court in which he made the following findings and recommendations.

Respondent represented Dr. Newman, a chiropractor, on two PIP claims against Progressive Insurance Company (“Progressive”) regarding the treatment of Mr. Riley (“Riley”) and Mrs. Reem Riley (“Reem Riley”). Respondent represented Newman pursuant to a legal services contingency fee contract. The contract provided that if Newman prevailed, the insurance company would be required to pay Newman's attorney's fees to Respondent. If Newman did not prevail, Newman would not owe Respondent any attorney's fees. Thus, Newman would not be responsible for payment of attorney's fees to Respondent. On the other hand, if the insurance company prevailed, the contract provided that Newman alone could be responsible for Progressive's attorney's fees and costs.

The referee found that the “claim involved a $24.00 claim for each of the two Rileys, i.e. a total of $48.00.” The entire benefit Newman could gain from the case was payment of $48 and a clear statement to Progressive that he would pursue claims and that the claims were valid. By the time the case reached mediation, Respondent had spent approximately sixty hours working on it. His normal billing rate was $225 per hour.

If an insured is ultimately found liable for contesting a PIP claim, the statutory penalties of interest and attorney's fees would be applicable. If the claim was determined to be unfounded, Newman could have been responsible for Progressive's attorney's fees.

At mediation, Progressive offered $2500 to settle the claim. By this offer, Newman would have been paid in full ($48) and would have established the desired precedent that Progressive must pay these claims. The referee found that “Newman could not have gained or benefited any more than the offer made at mediation.” However, if Newman accepted the offer, Respondent would have been compensated less than $2,500 for his sixty hours of work. Newman rejected the settlement offer. The reason for the rejection is the primary factual dispute in this case.

Newman testified that he was inclined to accept the offer, as it would have given him everything he could have received in the case and eliminated any risk that he would be liable for Progressive's fees and costs. According to Newman, Respondent raised the issue that he had spent sixty hours on the case and that this would be a low amount of compensation for him. Newman stated that Respondent wanted to proceed with the case, and indicated there was a high likelihood that the claim would be upheld and then Respondent could be appropriately compensated. According to Newman, Respondent told him that Respondent would be responsible for all of Progressive's fees and costs if Progressive prevailed. Newman testified that he rejected the mediation offer based upon Respondent's representations.

Respondent admitted that he did raise the issue of the time he had invested in the case, but he denied advising Newman to reject the claim and denied offering to be responsible for Progressive's possible attorney's fees or costs. The referee found that Respondent's testimony regarding the decision to reject the mediation offer was vague and incomplete, and that there were direct conflicts between Respondent's and Newman's testimonies.

Because the offer was rejected at mediation, the two PIP claims proceeded to trial and appeal. The Reem Riley case proceeded to a non-jury trial. Newman's claim was upheld at the trial and he was awarded $24 in damages. Also, he was entitled to attorney's fees and costs. Respondent had expended 235.5 hours for the Reem Riley $24 PIP claim. The court awarded attorney's fees of $120,772.50, as well as costs, on the $24 PIP claim.

As to the Riley claim, Progressive was awarded a Final Summary Judgment and attorney's fees. The court awarded $9,000 in fees to Progressive, plus $1,200 in costs. The court authorized a setoff for these claims that would have netted Respondent approximately $110,000. Progressive appealed the award and Newman filed a cross-appeal.

Respondent “retained” another attorney, Mr. Saltsgaver, to represent Newman in the appeal. Pursuant to the contingent fee agreement, Newman was not responsible for payment of any fees to Saltsgaver.

Progressive prevailed on both appeals. The award of attorney's fees to Respondent was set aside. Newman was legally responsible for Progressive's fees and costs.

Respondent then retained the services of another attorney, Mr. Caldevilla, to pursue additional appellate remedies. Respondent signed a fee engagement letter with Caldevilla, but Newman never signed the engagement letter. Caldevilla sent periodic statements to Respondent and Newman, with Respondent paying Caldevilla approximately $5800 in fees. When Caldevilla contacted Newman regarding fees owed, Newman indicated that he had never signed the fee engagement letter and was not responsible for any of Caldevilla's fees. At that point, Caldevilla's office staff examined the office's records and confirmed that the fees had been paid by Respondent, not Newman. Caldevilla contacted Respondent regarding these payments, and Respondent feigned surprise that his office had been paying Caldevilla's fees. The referee found this representation by Respondent to Caldevilla was “in direct contravention of the clearly established evidence in this case that Patrick accepted responsibility for payment of at least part of Caldevilla's fees and authorized payment thereof. The representations by Patrick to Caldevilla regarding surprise that he had been paying part of the fees was false and misleading.”

Progressive prevailed on both of these appeals. Progressive sought payment from Newman of the fees that were awarded to Progressive.

The referee had to determine “whether Newman rejected the offer to settle and accepted responsibility of the potential liability for Progressive's attorney's fees or whether Patrick induced Newman to reject the offer so that Patrick could pursue full payment of attorney's fees and costs herein and Patrick assume responsibility for Progressive's attorney's fees in the perceived unlikely event that Progressive ultimately prevailed in the case.” The referee found that Newman rejected the offer of settlement based upon Respondent's inducements so Respondent could pursue the full claim for attorney's fees. The referee also found that Respondent told Newman that if Progressive prevailed, Respondent would be responsible for Newman's fees and costs to Progressive. The referee specifically rejected Respondent's assertions that he did not induce and encourage Newman to reject the offer of settlement and did not indicate to Newman that Respondent would be responsible for Progressive's fees and costs if Progressive prevailed.

Further, the referee found that Newman's actions after the rejection of the settlement offer were consistent with Newman's reliance on Respondent's assurance that he would have no ultimate risk because Respondent had assumed all risk of continuing the prosecution of these small PIP claims. Newman had nothing further to gain. Absent Respondent's assurances, Newman faced significant risk in having the cases proceed after mediation. Also, Newman's decision not to sign Caldevilla's fee engagement letter and refusal to pay any fees are consistent with this position.

In comparison, the referee found that Respondent's explanations of the rejection of the offer “defy reason, logic, and an attorney's duty to zealously represent a client.” Respondent's claim that he merely let Newman decide without providing a recommendation falls below any reasonable level of competency. Respondent should have advised Newman to accept the offer because the offer gave Newman everything Newman could have gained in the case. The referee stated:

The entire motivation to reject the offer at mediation and proceed with this claim was based upon Patrick's desire to be fully compensated for the time, money, and effort he had placed in this case. In order to be able to do so, he induced and convinced Newman to reject the offer by accepting all of the additional risk. Patrick clearly placed his personal interest of being compensated above the interest of his client. Patrick wrongfully advised and induced his client to reject an offer for full compensation so that Patrick could personally benefit. Patrick wrongfully agreed to and paid approximately $5,800.00 towards Caldevilla's fees.

Respondent denied making this inducement to Newman and refused to pay any of Progressive's fees or costs that were levied upon Newman.

The referee found that Respondent's conduct, which includes placing his personal interest above the interests of his client, inducing his client to reject an offer that could subject his client to significant...