The Florida Bar v. Tauler, SC94239.
| Decision Date | 22 November 2000 |
| Docket Number | No. SC94239.,SC94239. |
| Citation | 775 So.2d 944 |
| Parties | THE FLORIDA BAR, Complainant, v. Elena C. TAULER, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John Anthony Berry, Staff Counsel, Tallahassee, Florida; and Cynthia Ann Lindbloom, Bar Counsel, Miami, Florida, for Complainant.
Scott W. Sakin, Miami, Florida, for Respondent.
The Florida Bar has petitioned for review of the referee's report in this case involving attorney discipline. We have jurisdiction under article V, section 15, Florida Constitution, and for the reasons expressed, we approve the referee's report and recommended discipline.
The Bar filed a complaint against Tauler alleging misappropriation of client funds and multiple resultant violations of the Rules Regulating The Florida Bar. Ultimately, Tauler and the Bar stipulated to extensive facts, the essence of which are as follows. During June, July, and October of 1996, Tauler issued $56,628.45 in checks to herself from her trust account. These client funds were used to satisfy Tauler's personal and business obligations, which were unrelated to the clients for whom the funds were being held. Tauler replaced and disbursed $35,522.54 to one client in early December 1996, and replaced and disbursed the remaining funds to two other clients in late January and early February 1997.
Based on the above facts, the referee found Tauler guilty of violating rule 4-1.15(a) (); rule 4-1.15(b) (); and rule 5-1.1(a) (), and hearings were held on the subject of discipline only. The referee found in aggravation that Tauler's conduct exhibited a selfish motive and constituted multiple offenses. See Fla. Stds. Imposing Law. Sancs. 9.22(b), (d). In mitigation, the referee found personal and emotional problems, positive character and reputation, timely and good faith restitution, full and free disclosure, and remorse. See Fla. Stds. Imposing Law. Sancs. 9.31(c)-(e), (g)-(h). As to discipline, the referee recommended a three-year suspension commencing on December 9, 1998,1 to be followed by one year of probation if Tauler was reinstated. The referee recommended the conditions of such probation include: trust account monitoring with $100 monthly cost of supervision, an initial LOMAS (Law Office Management Assistance Service) review, and negotiation or payment of an outstanding Medicaid lien in connection with matters pertaining to one client. The Bar contends that the referee improperly found the mitigating factor of good faith and timely restitution, and that disbarment is the appropriate sanction.
The Bar argues that the referee improperly found the mitigating factor of good faith and timely restitution because Tauler did not return the misappropriated funds to two clients until after a substantial delay, the restitution was compelled by the Bar's investigation, and Tauler returned the bulk of the misappropriated funds directly to her client instead of satisfying an outstanding Medicaid lien. The Bar contends that these actions are inconsistent with good faith and timely restitution.
A referee's finding as to the existence of a particular mitigator is considered a factual determination and is "presumed correct and will be upheld unless clearly erroneous or lacking in evidentiary support." See Florida Bar v. Hecker, 475 So.2d 1240, 1242 (Fla.1985)
. The standards provide that a "timely good faith effort to make restitution or to rectify consequences of misconduct" is a factor which may be considered in mitigation. See Fla. Stds. Imposing Law. Sancs. 9.32(d).
Although the dates of restitution to Tauler's clients in the stipulated facts confirms the Bar's allegations of some delay and that Tauler did not make immediate restitution until after the Bar commenced its investigation, Tauler's testimony supports the referee's finding. Tauler testified that the knowledge of the arrearage was a "daily struggle," and that she replaced the funds at the earliest possible opportunity by refinancing her family's home. The evidence also indicates that Tauler made a good faith effort to comply with both her client's demand for the funds and the Medicaid lien. Prior to distributing these funds to the client, Tauler and the client executed a release and indemnity agreement in which the client agreed to be responsible for the Medicaid lien and to maintain the funds in a separate account until the disputed amount of the lien was resolved. The factor involving early restitution distinguishes this case from those in which the debt remained outstanding even as the matter was reviewed by this Court.
In reviewing a referee's factual determinations, our role is not to reweigh the evidence and substitute our view of the credibility of the witnesses for that of the referee. See Florida Bar v. Lecznar, 690 So.2d 1284, 1287 (Fla.1997)
; Florida Bar v. Bustamante, 662 So.2d 687, 689 (Fla. 1995). We approve the referee's finding of good faith and timely restitution because of the competent substantial evidence to support the finding.
The Bar also contests the referee's recommended discipline, arguing that the presumption of disbarment for misappropriation of client funds has not been rebutted. Although a referee's findings of fact are given deference, the scope of review of recommended discipline is broader because this Court has the ultimate responsibility to determine the appropriate sanction. See Florida Bar v. Niles, 644 So.2d 504 (Fla.1994)
. However, this Court has recognized that the referee "occupies a favored vantage point for assessing key considerations-such as a respondent's degree of culpability and his or her cooperation, forthrightness, remorse, and rehabilitation (or potential for rehabilitation)," and therefore the Court "will not second-guess a referee's recommended discipline as long as that discipline has a reasonable basis in existing caselaw." Florida Bar v. Lecznar, 690 So.2d 1284, 1288 (Fla.1997).
In support of its argument for disbarment, the Bar relies heavily on Florida Bar v. Shuminer, 567 So.2d 430 (Fla. 1990), and Florida Bar v. Shanzer, 572 So.2d 1382 (Fla.1991), arguing that these cases involved virtually identical aggravating and mitigating factors as present here, and disbarment was found to be the appropriate discipline. We find both cases distinguishable. In Shuminer, the attorney entered an unconditional guilty plea to various misappropriation violations. The referee found mitigating factors of personal and emotional problems from drug and alcohol addiction, timely and good faith effort at restitution, cooperation, inexperience, remorse, mental impairment due to addiction, successful attempts at treatment, and good character and reputation. Nevertheless, we disbarred Shuminer, because Shuminer "failed to establish that his addiction rose to a sufficient level of impairment to outweigh the seriousness of his offenses," and used a significant portion of the funds "not to support or conceal his addictions, but rather to purchase a luxury automobile." Shuminer, 567 So.2d at 432.
Likewise, in Florida Bar v. Shanzer, 572 So.2d 1382 (Fla.1991), we approved the referee's recommendation of disbarment for misappropriation. Although the attorney argued that emotional problems, full cooperation, remorse, rehabilitation, and payment of restitution warranted less severe discipline, we held that such problems "are visited upon a great number of lawyers," and are not an excuse "for dipping into his trust funds as a means of solving personal problems." Shanzer, 572 So.2d at 1384. We recognized in Shanzer that "mental problems as well as alcohol and drug problems may impair judgment so as to diminish culpability," but that the referee in Shanzer's case did not abuse his discretion in rejecting this defense for Shanzer.
In contrast to the situation in Shanzer, the referee in the instant case found that Tauler was less culpable because of personal and emotional distress. The referee found that at the time of Tauler's misappropriations, Tauler's husband had recently lost his own surgery practice due to a back injury and had filed for bankruptcy, and that the family home was being lost:
The testimony of [Tauler's] husband, Dr. Tomas (no longer practicing surgical oncology), was very disturbing. It was patently obvious that he was the prime mover in the wrongdoings committed by [Tauler]. Dr. Tomas was an overbearing husband who had surgeries on his own back and had recently lost his own surgical practice. This coincided with his own bankruptcy, screaming and yelling at [Tauler], throwing objects against the wall at [Tauler] and his brow-beating of [Tauler] at a time when they were losing their home. ([Tauler] is the mother of five children, three of them with Dr. Tomas.)
The referee's finding of diminished culpability due to the circumstances surrounding Tauler's misconduct sufficiently distinguishes this case from Shuminer and Shanzer.
We have also carefully considered our recent decisions in Florida Bar v. Travis, 765 So.2d 689 (Fla.2000), and Florida Bar v. Korones, 752 So.2d 586 (Fla.2000), in which we disbarred misappropriating attorneys and reemphasized that misappropriation of trust proceeds is one of the most serious offenses an attorney can commit. Although Tauler's misuse of client funds is clearly unacceptable, the circumstances of her misappropriations vary greatly from those in Travis and Korones. In contrast to Tauler's three instances of misappropriations over five months, Travis and Korones involved substantial and continuous misappropriations over a period of time. See Travis, 765 So.2d 689
(); Korones, 752 So.2d at 587 (...
To continue reading
Request your trial
-
The Florida Bar v. Del Pino
...less than disbarment). We conclude that the facts before us are more akin to the cases Smith, 866 So.2d 41, and Florida Bar v. Tauler, 775 So.2d 944 (Fla.2000), than to the cases cited by the referee, McKeever, 766 So.2d 992, Forbes, 596 So.2d 1051, and Prior, 330 So.2d In Smith, 866 So.2d ......
-
Fla. Bar v. Alters
...the Court finds this unrefuted testimony persuasive. Alters' conduct clearly exhibits a selfish motive. See, e.g. , Fla. Bar v. Tauler , 775 So.2d 944 (Fla. 2000) (approving referee's finding in aggravation of selfish motive when attorney issued checks from the firm's trust account to satis......
-
The Florida Bar v. Spear, SC03-420.
...Florida Bar are deserving of their trust in every transaction. Travis, 765 So.2d at 691. The present case differs from Florida Bar v. Tauler, 775 So.2d 944 (Fla.2000), and other such cases wherein the Court imposed a sanction other than disbarment for the misappropriation of client funds. I......
-
The Florida Bar v. Valentine-Miller
...would be unfair and inappropriate in a particular case. See, e.g., Fla. Bar v. McFall, 863 So.2d 303 (Fla.2003); Fla. Bar v. Tauler, 775 So.2d 944 (Fla.2000). Respondent was aware that she owed her clients money, due to the numerous phone calls she received from her clients asking her for t......