The Florida Bar v. Simring
| Decision Date | 21 January 1993 |
| Docket Number | 78243,78898 and 79510,Nos. 77351,s. 77351 |
| Parties | 18 Fla. L. Week. S73 THE FLORIDA BAR, Complainant, v. Ellis S. SIMRING, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Kevin P. Tynan, Bar Counsel and Linda J. Amidon, Co-Bar Counsel, Fort Lauderdale, for complainant.
Ellis S. Simring, pro se, Fort Lauderdale.
Neil F. Garfield, Co-counsel of Garfield & Associates, P.A., Fort Lauderdale, for respondent.
The Florida Bar v. Simring, No. 77,351 and The Florida Bar v. Simring, No. 78,243 are before this Court on complaints from The Florida Bar and the referee's report finding the respondent, Ellis S. Simring, guilty of professional misconduct and recommending an eighteen-month suspension. We also have The Florida Bar v. Simring, No. 78,898, where this Court found the respondent guilty of contempt for violating this Court's order, dated January 14, 1991, temporarily suspending him, and The Florida Bar v. Simring, No. 79,510, in which the referee found the respondent guilty of contempt for violating this Court's temporary suspension order. 1 The Florida Bar petitions for review of the referee's findings and seeks disbarment. We have jurisdiction based on article V, section 15 of the Florida Constitution. We agree with The Florida Bar that the respondent should be disbarred from the practice of law.
In The Florida Bar v. Simring, No. 77,351, The Florida Bar charged the respondent with five counts of trust account violations resulting from the respondent's misappropriation of client funds, failure to maintain proper trust account records, and the commingling of personal and trust account funds. The referee made the following findings as to each count:
Count I: Trust Account Records
A Florida Bar auditor conducted an examination of the respondent's trust account for the period beginning January 1, 1989, and ending September 30, 1990, and the auditor found that the respondent did not maintain complete trust account records. In order to conduct the examination, the auditor was required to create individual client ledger cards, bank reconciliations, and a client liability list for specific dates. When the auditor requested the respondent's client files, the respondent replied: "I threw them all away."
The auditor's examination revealed significant trust account shortages between the balance of the respondent's trust account and the amount of client liabilities owed for the period of March 1989 to September 1990. The examination also revealed that in November and December of 1989 the respondent's trust account showed a surplus between the trust account balance and client liabilities. However, by January 1990 significant shortages reappeared in the trust account and continued until the respondent closed his trust account. The auditor's examination showed that the shortages in the trust account fluctuated between a low of $16,281.92 to a high of $67,727.61. The referee concluded that the respondent had caused these fluctuations by commingling his personal and trust account funds.
The referee found the respondent guilty of violating Rules Regulating The Florida Bar 3-4.2 (a lawyer shall not violate the Rules of Professional Conduct), 4-1.15(b) (), 4-1.15(d) (), 4-8.4(a) (); and 5-1.1 (money entrusted to a lawyer for a specific purpose must only be used for that purpose).
The referee, however, found that The Florida Bar had failed to establish by clear and convincing evidence that the respondent had intentionally misappropriated his clients' funds. The referee specifically stated:
Primarily because of Respondent's improper trust accounting techniques (lack of records and documentation) [The Florida Bar's] case amounted to merely establishing "paper shortages" in the trust account. Respondent cannot be said to have committed theft unless it is proven that he has taken client's property with intent to deprive the client of the right to the property. The evidence provided by [The Florida Bar] falls short of establishing those requisite elements. The Petitioner seeks to raise a presumption of theft by repeated instances of shortages in the trust account over an extended period of time. However, [The Florida Bar's] case must fail in that regard, especially where no injured party was presented, no client complained to the Bar[,] nor was any evidence presented that any client in fact failed to receive money due.
Thus, the referee found the respondent not guilty of violating Rules Regulating The Florida Bar 3-4.4 (commission by a lawyer of any act which is unlawful or contrary to honesty and justice may be cause for discipline); 3-4.4 (criminal misconduct is cause for discipline); 4-8.4(b) (); and 4-8.4(c) ().
Count II: Deposit of Funds in Non-interest-bearing Account
The referee found that the respondent failed to deposit short term funds into an interest-bearing trust account for the period beginning January 1, 1989 and ending September 30, 1990. Thus, the referee found the respondent guilty of violating Rules Regulating The Florida Bar 3-4.2 (a lawyer shall not violate the Rules of Professional Conduct), 4-1.15(d) (), 4-8.4(a) (), and 5-1.1(d) ().
Count III: Commingling of Funds
The referee found through the auditor's examination and the parties' stipulation that the respondent commingled his funds with client funds in the following manner:
a) On January 25, 1989, a loan of $5,000.00 from Jean Bussman, the Respondent's bookkeeper, was deposited in the trust account.
b) On February 24, 1989, a loan of $15,407.79 from Rusty, a sometimes client of the Respondent, was deposited in the trust account.
c) In March 1989, the Respondent deposited $22,463.55, which he says was [sic] the proceeds from the sale of his home, in his trust account.
d) On August 28, 1989, the Respondent deposited $10,247.00, which he said was [sic] the proceeds from the sale of some property he owned in Las Vegas, Nevada, into his trust account.
e) On November 9, 1989, $17,360.00 was deposited into the trust account and Respondent states this was the net proceeds from the sale of property on Manor Drive in St. Lucie County, Florida which he used to own.
The record shows by clear and convincing evidence that the respondent deposited loans from an employee and a former client and personal funds into the trust account. The record also reveals that from January 1, 1989, through June 30, 1990, the respondent made deposits in his trust accounts which were noted in the cash receipts journal as coming from personal funds totaling $187,881.27.
The referee found the respondent guilty of violating Rules Regulating The Florida Bar 3-4.2 (a lawyer shall not violate the Rules of Professional Conduct), 4-1.15(d) (), and 4-8.4(a) ().
Count IV: Failure to Maintain Minimum Trust Account Records
The referee found that the respondent failed to keep the minimum required trust account records and failed to follow the minimum trust accounting procedures. In particular, the respondent failed: 1) to keep deposit slips from February 16, 1990 to the present which showed the date and source of trust account funds; 2) to keep a separate ledger card for each client or third party who entrusted the respondent to hold funds for a specific purpose; 3) to provide The Florida Bar's auditor with any trust account bank reconciliation or reconciliations of client ledger cards and trust account balances; 4) to properly identify the client matter for which the respondent issued a check in the cash disbursement journal; and 5) to conduct monthly and yearly bank reconciliations of his trust account.
The referee found the respondent guilty of violating Rules Regulating The Florida Bar 3-4.2 (a lawyer shall not violate the Rules of Professional Conduct), 4-1.15(d) (), 4-8.4(a) (), 5-1.1(c) (), 5-1.2(b) (), and 5-1.2(c) ().
Count V: Charges as to a Second Account
The auditor also examined a second account in the respondent's name for the period beginning February 1, 1989 and ending June 30, 1990. An examination of this account showed that during the period reviewed by the auditor, the trust account had forty-four checks which the bank dishonored because of insufficient funds. Further, on numerous occasions the second account was in an overdraft position. In fact, during the entire month of May 1990, the bank balance was in an overdraft position. The referee noted that "[a]lthough the parties stipulated that 'in at least three instances checks were issued from this account for client purposes' [The Florida Bar] failed to establish that said account was in fact used as an attorney/client Trust Account." The referee found that because The Florida Bar failed to establish that the...
To continue reading
Request your trial
-
The Florida Bar v. Shoureas
...271 So.2d 758, 761 (Fla.1972) (quoting State ex rel. Florida Bar v. Murrell, 74 So.2d 221, 223 (Fla.1954)); see also Florida Bar v. Simring, 612 So.2d 561, 571 (Fla.1993) ("[D]isbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrate......
-
Fla. Bar v. Ratiner
...(Fla. 2007) ; Fla. Bar v. Rotstein , 835 So.2d 241 (Fla. 2002) ; Fla. Bar v. Norkin , 183 So.3d 1018 (Fla. 2015) ; and Fla. Bar v. Simring , 612 So.2d 561 (Fla. 1993). As discussed in our analysis below, the referee did not discuss any of the individual cases cited or why the cases supporte......
-
The Florida Bar v. Pellegrini
...we find that it does not rise to the level of the misconduct in Florida Bar v. Benchimol, 681 So.2d 663 (Fla.1996), and Florida Bar v. Simring, 612 So.2d 561 (Fla.1993). In Simring, the attorney wrote checks on his trust account totaling more that $19,000 to pay for personal and office expe......
-
The Florida Bar v. Ross
...the license to practice law generally is punishable by disbarment, absent strong extenuating factors"). See also Florida Bar v. Simring, 612 So.2d 561, 570-71 (Fla.1993); Florida Bar v. Bouman, 558 So.2d 994, 994 (Fla.1990); Florida Bar v. Winter, 549 So.2d 188, 189 III. REVIEW OF REFEREE'S......