The Florida Bar v. Taylor, s. 81379

• Citation: 648 So.2d 709
• Decision Date: 05 January 1995
• Docket Number: 81903,Nos. 81379,s. 81379
• Parties: 20 Fla. L. Weekly S20 THE FLORIDA BAR, Complainant, v. Phillip H. TAYLOR, Respondent.
• Court: United States State Supreme Court of Florida

Page 709

648 So.2d 709

20 Fla. L. Weekly S20

THE FLORIDA BAR, Complainant, v. Phillip H. TAYLOR, Respondent.

Nos. 81379, 81903.

Supreme Court of Florida.

Jan. 5, 1995.

John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Jan Wichrowski, Bar Counsel, Orlando, for complainant.

G. Michael Keenan of G. Michael Keenan, P.A., West Palm Beach, for respondent.

PER CURIAM.

The Florida Bar petitions for review of the referee's findings in this disciplinary case regarding Phillip H. Taylor's failure to pay child support. We have jurisdiction. Art. V, Sec. 15, Fla. Const. For the reasons expressed, we approve the referee's findings and recommendation that no disciplinary action be taken by this Court in this cause. This approval, however, is without prejudice as to further proceedings regarding the failure to pay child support under the principles set forth in this opinion or under the new disciplinary rule proposed in In re Rules Regulating The Florida Bar--Willful Nonpayment of Child Support, No. 84,390 (Fla. Nov. 3, 1994), should that rule be adopted.

The facts of this case are as follows. ¹ Taylor was divorced in 1972 in New Hampshire and was ordered to pay child support for his two minor children. After the divorce, he became a successful medical doctor. Due to drug and alcohol addictions, however, he eventually lost everything, including his medical license. Thereafter, he began treatment for his addictions and entered and completed law school. After passing the Florida Bar exam, he was admitted to the Bar on probationary status in 1989 and was hired by a large personal injury law firm.

Over the years, Taylor had also become increasingly delinquent in his child support. When Taylor was seeking admission to the Bar, he disclosed his child support problems and, although he was admitted to the Bar on a probationary status, payment of the delinquent child support was not a part of the conditions imposed under the probation.

In March 1991, Taylor's ex-wife filed a petition in New Hampshire seeking to have Taylor held in contempt for failure to pay child support. The New Hampshire court issued an order of contempt, finding that Taylor owed $37,850 in back child support and that, at times, Taylor had the ability to pay this support and without just cause failed to do so. That order was still in effect at the time of the hearing before the referee in this cause. The Bar charged Taylor with violating Rule Regulating The Florida Bar 3-4.3 (committing an act that is unlawful or contrary to honesty and justice) and rules 4-8.4(a) and (d) (engaging in conduct prejudicial to the administration of justice).

The referee recommended that Taylor be found not guilty, finding that this matter was more like a private civil matter between Taylor and his ex-wife than a matter subject to discipline. Additionally, the referee noted that Taylor's situation has not had an adverse impact on his ability to practice law, nor does it involve dishonesty, moral turpitude, immorality, deceit, or breach of trust. Because Taylor owed the child support before being admitted to the Bar, the referee was also concerned that the imposition of sanctions would implicate ex post facto considerations.

The Bar contends that the referee's legal conclusions are erroneous because Taylor was held in contempt of court, which is distinct from a "civil matter" not subject to discipline. The Bar notes that this Court has disciplined other attorneys who have been held in contempt of court, and, consequently, asserts that Taylor's contempt for failing to pay child support should likewise subject him to discipline. The Bar cites The Florida Bar v. Langston, 540 So.2d 118 (Fla.1989), for the proposition that this Court has already disciplined an attorney for failure to pay child support.

Notably, this Court will not hesitate to discipline attorneys, under Rule Regulating The Florida Bar 4-8.4 (obstruction of justice), who are held in criminal contempt of court or who have clearly committed a dishonest or fraudulent act. See, e.g., The Fla. Bar v. Rood, 633 So.2d 7 (Fla.1994); Langston; The Fla. Bar v. Attias, 513 So.2d 1055 (Fla.1987); The Fla. Bar v. Gifford, 478 So.2d 46 (Fla.1985). What distinguishes these cases from the instant case, however, is that the contempt at issue in all but Langston was criminal contempt, while the contempt at issue in the present case is civil contempt. ² Moreover, although the attorney being disciplined in Langston had failed to pay child support, the uncontroverted evidence in that case reflected that the attorney had also engaged in a "calculated scheme to defraud his wife of alimony and to prevent the equitable distribution of [the marital] property." 540 So.2d at 120. In addition, he testified falsely before the trial court. Consequently, although there was no direct finding of criminal contempt in Langston, there was a specific finding of fraudulent and dishonest conduct.

While we do not condone Taylor's conduct, we find that our present disciplinary rules do not grant us the authority to discipline an attorney for the failure to meet a civil obligation such as child support absent a finding of fraudulent or dishonest conduct. Because the record in this case contains no finding...