The Fla. Bar v. Rush

• Decision Date: 04 May 2023
• Docket Number: SC2020-1685
• Parties: THE FLORIDA BAR, Complainant, v. BRIAN P. RUSH, Respondent.
• Court: Florida Supreme Court

1

THE FLORIDA BAR, Complainant,
v.
BRIAN P. RUSH, Respondent.

No. SC2020-1685

Supreme Court of Florida

May 4, 2023

Original Proceeding - The Florida Bar

Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar, Tallahassee, Florida, Mark Mason, Bar Counsel, The Florida Bar, Tallahassee, Florida, and Kimberly Anne Walbolt, Bar Counsel, The Florida Bar, Tampa, Florida; and Kevin W. Cox, Tiffany Roddenberry, and Kathryn Isted of Holland &Knight, LLP, Tallahassee, Florida, for Complainant

Brian P. Rush of Woodlief &Rush, P.A., pro se, Tampa, Florida, for Respondent

PER CURIAM.

Respondent, Brian P. Rush, seeks review of a referee's report recommending that he be found guilty of professional misconduct and suspended from the practice of law for three years for failing to follow his client's directives and placing his personal pecuniary interests ahead of the client's stated goals.^[1] Rush challenges the referee's findings of fact and recommendations as to guilt, arguing that his conduct did not violate any of the Rules Regulating The

2

Florida Bar (Bar Rules). He also asserts that because he is not guilty of misconduct, he should not be sanctioned and assessed the Bar's costs. We disagree, and for the reasons discussed below, we approve the referee's report in its entirety and suspend Rush from the practice of law for three years.

I. BACKGROUND

North Park Isles and JT North Park (collectively North Park), both limited liability companies, were owned by three managing members, Todd Taylor, Jack Suarez, and Bob Suarez. North Park owned property in Hillsborough County that was the subject of an eminent domain action by the Florida Department of Transportation (FDOT). North Park and FDOT reached an agreement to relocate a planned drainage pond on the property.

In anticipation of further litigation, Taylor hired Rush in 2014. On behalf of North Park, Taylor signed a fee agreement stating that Rush's legal costs and expenses would be paid by the State of Florida and FDOT. The agreement also stated that if the legal representation was terminated, North Park would be obligated to pay the reasonable value of Rush's services.

3

In October 2017, the circuit court entered an order of taking for the North Park property necessitating a determination of compensation for the taking. Rush argued that the current placement of a drainage pond would restrict access to the land destroying its developmental value, but that FDOT could move the pond and restore approximately $8,000,000 in value to the land. This would constitute a nonmonetary benefit, and the enhanced value of the land would entitle Rush to an award of statutory attorney's fees. Initially, North Park went along with Rush's argument as the eventual buyer, Jeffery Hills, wanted the pond moved to accommodate model home frontage.

At first, Hills had difficulty obtaining financing and was paying extension fees on the purchase contract. In the spring of 2018, Hills' financing was approved, but the bank would not fund the closing until the eminent domain case concluded. At that point, North Park's objectives changed, and Rush was told that the goal was to settle the eminent domain action quickly to facilitate the sale of the property. Thereafter, Rush began filing a series of unauthorized pleadings and motions in the eminent domain case

4

seeking to preserve and advance his claim for attorney's fees based on his nonmonetary benefits argument.

North Park met with Rush to discuss the plan of negotiating an expediated settlement to facilitate the sale of the property. During the meeting, Rush reminded North Park that termination of his services would make North Park responsible for paying his legal fees and costs. When asked to approximate the amount, Rush estimated his legal fees and costs to be somewhere between $300,000 and $1,000,000. Though North Park no longer wanted Rush to pursue his argument for nonmonetary benefits, it was afraid to terminate Rush's representation because of the potential liability for a million dollars in fees. North Park emphasized to Rush that the pending sale of the property was the priority and that the closing needed to occur by the end of April 2018.

North Park enlisted its real estate counsel, Richard Petitt, to assist with getting Rush to settle the eminent domain case quickly. But Rush continued to file pleadings with the court that advanced his argument for nonmonetary benefits. Then, prior to consulting with North Park, Rush sent FDOT a settlement proposal waiving

5

monetary benefits in favor of Rush's nonmonetary benefits argument.

In mid-April 2018, at North Park's urging, Petitt filed a notice of appearance in the eminent domain case on behalf of North Park. He instructed Rush not to file anything further without first obtaining client consent, communicated through Petitt. Despite this clear directive, Rush continued to file pleadings seeking approximately $1,400,000 in attorney's fees based on his argument for nonmonetary benefits.

Rush's unwillingness to cooperate with Petitt ultimately resulted in the circuit court becoming confused as to who was representing North Park. It refused to rule on any pending motions until the issue was resolved. North Park told the court that it was unsure what to do about Rush because it was concerned about its potential million-dollar fee liability.

Based on prior interactions with Rush and safety concerns, the FDOT attorney, Aloyma Sanchez, brought Phillip Hobby, an independent contractor, with her to a hearing in July 2018. After the hearing, Rush was very angry and...