The Florida Bar v. Beach

• Decision Date: 25 April 1996
• Docket Number: No. 85005,85005
• Citation: The Florida Bar v. Beach, 675 So.2d 106 (Fla. 1996)
• Parties: 21 Fla. L. Weekly S188 THE FLORIDA BAR, Complainant, v. Roy BEACH, Respondent.
• Court: Florida Supreme Court

Page 106

675 So.2d 106

21 Fla. L. Weekly S188

THE FLORIDA BAR, Complainant, v.Roy BEACH, Respondent.

No. 85005.

Supreme Court of Florida.

April 25, 1996.

Rehearing Denied June 14, 1996.

Original Proceeding, The Florida Bar.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and John B. Root, Jr., Bar Counsel, Jan K. Wichrowski, Co-Bar Counsel and Rose Ann Degangi, Co-Bar Counsel, Orlando, for Complainant.

Roy L. Beach, Orlando, pro se.

PER CURIAM.

We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by Roy Beach.¹We have jurisdiction.Art. V, § 15, Fla. Const.

FACTS

The alleged violations in this case concern Beach's legal practices during 1993 when he provided services as an independent contractor to King and King Paralegals (King and King).King and King was owned and operated by Kenneth and Cathy King.As the Kings' supervising attorney, Beach discussed their clients' legal issues, reviewed pleadings and other documents prepared by them, and offered thirty-minute consultations to Kings' customers.King and King paid Beach a $75 flat rate for his services rendered in each case.

On June 29, 1993, Margery Rose contracted with King and King to prepare legal documents, which would be reviewed by Beach.The contract also provided that Beach would have a thirty-minute consultation with Ms. Rose, but would not represent her unless she entered into a separate agreement with him.Pursuant to the contract, Ms. Rose paid King and King $675 as a nonrefundable retainer to prepare the paperwork, conduct research and additional interviews, and for attorney time.During her relationship with King and King, Ms. Rose received advice and guidance from Kenneth King regarding the various legal actions she considered pursuing.The guidance provided by King was the direct product of legal advice King had received from Beach.

Approximately two weeks after hiring the Kings, Ms. Rose requested they cease working on her case and provide her with the documents they had prepared up to that point.She also requested but was denied a refund.Ms. Rose then filed a pro se action seeking a refund and delivery of her file documents to determine whether the legal services she initially requested had been performed.The Kings defended that action pro se.After mediating the disagreement, the parties entered into a stipulation which provided the Kings would deliver the documents within seventy-two hours and pay Ms. Rose $47 on or before October 21, 1993.Subsequently, a dispute arose as to whether the Kings had exhibited good faith in attempting delivery of the documents within the required time period, and final judgment was entered awarding Ms. Rose $675 because of the Kings' breach of the stipulation.

Ms. Rose filed a grievance with The Florida Bar wherein she complained that Roy Beach had failed to meet with her or contact her pursuant to the King and King contract.Ms. Rose also stated in her complaint that the Kings had tried twice to deliver her documents to her former husband prior to actually delivering them to him at his place of business.Based upon his belief that Ms. Rose's statement was contradictory to her prior position that the Kings had violated the mediation agreement, Beach filed a motion on behalf of the Kings to vacate the final judgment.²The court granted this motion and set the matter for a new final hearing but, prior to that date, Ms. Rose dismissed her action.

BAR PROCEEDINGS

The Florida Bar filed a complaint against Roy Beach alleging violation of Rules Regulating The Florida Bar 4-5.4 (sharing legal fees with a nonlawyer), 4-5.5 (assisting a person who is not a member of the Bar to perform activities that constitute the practice of law), 4-1.7 (representing a client when the representation would be directly adverse to the interests of another client), 4-1.8 (using information relating to the representation of a client to the disadvantage of the client), and 4-1.9 (representing another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of a former client).

REFEREE'S FINDINGS AND RECOMMENDATIONS

After a hearing, the referee recommended that Beach be found guilty of violating rules 4-5.4and4-5.5 and that he be suspended from the practice of law for three months with automatic reinstatement at the end of the suspension period and all costs of the proceedings be charged to the defendant.The referee found for Beach on the other charges.In his recommendation for discipline, the referee considered that Beach had a prior disciplinary suspension for twenty-eight days.Beach challenges the referee's findings and recommendations, contending that they are not supported by the record.Conversely, The Florida Bar challenges the referee's recommendations as to those issues found adversely to it and contends that a suspension requiring proof of rehabilitation is more appropriate given Beach's disciplinary history and the circumstances of the ethical violations at issue here.

OUR REVIEW

In Bar proceedings, a referee's findings of fact are presumed correct and this Court will not reweigh the evidence and substitute its judgment for that of the referee as long as the findings are not clearly erroneous or lacking in evidentiary support.Florida Bar v. Seldin, 526 So.2d 41, 43-44(Fla.1988);Florida Bar v. McKenzie, 442 So.2d 934, 934(Fla.1983).The party seeking to challenge the referee's findings of fact bears the burden of showing that the referee's findings are clearly erroneous or unsupported by the record.Florida Bar v. Neu, 597 So.2d 266, 268(Fla.1992);Florida Bar v. McClure, 575 So.2d 176, 177(Fla.1991).However, a referee's legal conclusions are subject to broader review by this Court than are findings of fact.Florida Bar In re Inglis, 471 So.2d 38, 41(Fla.1985).

In this case, the referee's finding that Beach assisted Mr. King in the unlicensed practice of law is supported by the record.Beach never met with or consulted Ms. Rose.Rather, he met with Mr. King who passed on Beach's advice to Ms. Rose concerning what legal action she should pursue.While Beach did discuss Ms. Rose's case with Mr. King, he never monitored or participated in the subsequent discussions that Mr. King had with Ms. Rose concerning her legal problems.At the discipline hearing, Beach inadvertently explained the ethical problem with his conduct here:

[W]hat I would do is, Mr. King would come in to me and say, Roy, this lady, she wants a change of custody.This is what she told me concerning the facts of it.What do we need to do?And I said okay; you need to prepare this; ask her some more information about this to maybe beef up the petition....And then he would go back to Ms. Rose.And he would say, okay, Ms. Rose, you need this document, this document, this document.So he did not give any independent advice of his own, but he was a conduit of me saying what was needed.

Beach improperly allowed Mr. King to act as his conduit for giving legal advice by obtaining and relaying, without supervision, case-specific information to persons whom Beach never actually met or consulted.Cf.Florida Bar v. Brumbaugh, 355 So.2d 1186, 1194(Fla.1978)(holding that non-lawyer proprietor of "secretarial service" overstepped bounds and engaged in unauthorized practice of law by advising clients of various legal remedies available to them, recommending appropriate legal forms to file and assisting in preparation and filing of forms).Consequently, we find the referee's...