The Florida Bar v. Rue, s. 79522
| Decision Date | 20 October 1994 |
| Docket Number | 80207,Nos. 79522,s. 79522 |
| Citation | 643 So.2d 1080 |
| Parties | 19 Fla. L. Weekly S532 THE FLORIDA BAR, Complainant, v. John D. RUE, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jan K. Wichrowski, Bar Counsel, Orlando, for complainant.
John A. Weiss, Tallahassee, and Patricia S. Etkin, Co-Counsel, Plantation, for respondent.
The Florida Bar petitions for review of the referee's findings of fact and recommended sanctions concerning John D. Rue. Rue cross-petitions for review of the referee's denial of his motion to dismiss the disciplinary proceedings. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution.
Case No. 79,522 involves allegations of numerous instances of improper solicitation of clients (including allegations that Rue paid a percentage of the fees obtained to his investigators and legal assistants), improper monetary advances to clients, and improper business transactions with clients. The referee, Orange County Judge Janis Mary Halker, found that the allegations of improper solicitation were not proven by clear and convincing evidence. However, the referee found, and Rue admitted, that he advanced money to clients for living expenses and made automobile sales to clients without written disclosure and transmittal to the client and without written client consent. The referee recommended that Rue be found guilty of violating the following Rules Regulating The Florida Bar in connection with Case No. 79,522: rule 4-5.4(a) (); rule 4-1.8(a) (); and rule 4-1.8(e) ().
Case No. 80,207 involves misconduct relating to Rue's representation of Paul and Karen Douglas. The complaint alleged various improprieties relating to Rue's contract of employment with the Douglases, including that Karen never signed the contract, that Rue failed to supply a copy of the contract or statement of client's rights until demanded by the Douglases several months later, and that the contract included clauses requiring a penalty upon termination of Rue's services and a fee for collection of personal injury protection (PIP) benefits which did not require any legal work. The complaint also alleged that Rue failed to provide the Douglas case with the required diligence and participation and that he engaged in improper business activities with Paul by attempting to sell him an automobile. The referee recommended that Rue be found not guilty of the last two counts because the Bar failed to prove the allegations by clear and convincing evidence. As to the first count, the referee found that Rue's failure to obtain Karen's signature and failure to provide the Douglases with a copy of the contract were not a course of conduct, but an oversight which did not adversely affect the Douglases' rights. Although the referee found that the contract did contain the termination penalty and the PIP recovery fee provisions, she found that the provisions had not been used in a punitive or improper manner. The referee recommended that Rue be found guilty of violating the following Rules Regulating The Florida Bar in Case No. 80,207: rule 4-1.5(a) (); and rule 4-1.5(f)(4)(B) ().
The referee consolidated the two complaints for purposes of final hearing and also heard evidence relating to a Notice of Inclusion filed by the Bar. The Notice of Inclusion charged Rue with further misconduct relating to clients Wolf and DeCicco, including solicitation, improper business transactions, and conflict of interest. The referee recommended that Rue be found not guilty of all the charges in the Notice of Inclusion, finding record evidence that Wolf hired Rue on his own initiative and no evidence to establish the other allegations.
The referee found that Rue had no prior disciplinary history, was admitted to the bar in 1974, and had a history of active participation in local charity and civic organizations. The referee recommended that Rue receive a public reprimand, be placed on probation for six months, and be required to complete an ethics course. Although the referee recommended that the costs and expenses of the proceedings be charged against Rue, she recommended that Rue only be charged for half of the investigation expenses and transcript costs because he had been found not guilty of the bulk of the charges.
The Bar argues that the findings of fact and determinations of not guilty relating to the improper solicitation allegations are erroneous and lack support in the evidence. The Bar also contends that the recommended discipline is wholly inadequate for the guilt findings made by the referee and that Rue should instead be suspended for three years.
A referee's findings of fact regarding guilt carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. The Fla. Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986). If the referee's findings are supported by competent, substantial evidence, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. The Fla. Bar v. MacMillan, 600 So.2d 457, 459 (Fla.1992). The party contending that the referee's findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. The Fla. Bar v. Miele, 605 So.2d 866, 868 (Fla.1992).
The Bar has failed to meet its burden as to the improper solicitation allegations involved in Case No. 79,522 and the Notice of Inclusion. Although the Bar points out evidence to support its version of the facts, it ignores contradictory evidence in the record. The Bar is essentially...
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