The Florida Bar v. Pellegrini
| Decision Date | 18 June 1998 |
| Docket Number | 87365,Nos. 86512,s. 86512 |
| Citation | 714 So.2d 448 |
| Court | Florida Supreme Court |
| Parties | 23 Fla. L. Weekly S357 THE FLORIDA BAR, Complainant, v. Santiago S. PELLEGRINI, Respondent. |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and Billy J. Hendrix, Bar Counsel, Miami, for Complainant.
H. Dohn Williams, Jr., Fort Lauderdale, for Respondent.
We have for review the complaint of The Florida Bar and the referee's amended report regarding alleged ethical violations by attorney Santiago S. Pellegrini. We have jurisdiction. Art. V, § 15, Fla. Const. For the reasons expressed in this opinion, we approve the referee's factual findings and recommendations and the referee's recommended discipline. We suspend Pellegrini from the practice of law for three years from the date of the referee's amended report, July 18, 1997, and continuing thereafter until he proves rehabilitation as provided in rule 3-5.1(e), Rules Regulating the Florida Bar.
Pellegrini was suspended from the practice of law by emergency order of this Court on August 9, 1995, based on allegations of trust fund violations and his failure to produce records required by a Bar subpoena. The Bar ultimately filed a five-count amended complaint against Pellegrini. Subsequently, this Court ordered Pellegrini to show cause as to why he had failed to comply with the emergency suspension order. The Court consolidated the two matters for final hearing. The Bar disputes certain factual findings and recommendations contained in the referee's report and the recommended discipline.
The parties do not dispute the referee's findings and recommendations on counts I, II, and V, or on the order to show cause. Pellegrini admitted that he failed to produce records related to his trust account required by Bar subpoena as alleged in count I. The referee recommended finding Pellegrini guilty on count I of violating rules 4-1.15(a)(client's funds to be held in trust), 4-1.15(d) () and 5-1.1(d) (), and not guilty of violating rule 5-1.1(a)(money entrusted to attorney for specific purpose to be held in trust and applied only to that purpose).
In count II, the referee found that Pellegrini collected an excessive contingency fee from a client and misappropriated other monies from the client's settlement funds. The client retained Pellegrini under a contingency fee arrangement to represent her in a personal injury action. Pellegrini filed a complaint in circuit court seven days after the settlement check was mailed and one day before the client signed a release accepting the settlement. The tortfeasor never filed an answer or a demand for arbitration. Pellegrini collected forty percent of the total settlement. The referee found that Pellegrini misappropriated other monies from the client's settlement funds but that Pellegrini repaid the amounts in full after the Bar began its investigation. Pelligrini claimed he withheld this money in order to negotiate on her medical bills. The client testified that Pellegrini withheld $12,000 from her settlement for payment of her medical bills. Pellegrini ultimately repaid her approximately $2,000 after the Bar began its investigation.
The referee recommended finding Pellegrini guilty on this count of violating rules 4-1.15(a)(client's funds to be held in trust), 4-1.5(f)(4)(B) (), 4-8.4(b)(committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 4-8.4(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 5-1.1(a)(money entrusted to attorney for specific purpose to be held in trust and applied only to that purpose), Rules Regulating The Florida Bar. The referee recommended finding Pellegrini not guilty of violating rule 4-8.4(a) (), Rules Regulating The Florida Bar.
The referee recommended a finding of not guilty on count V in which the Bar alleged that investigators employed by Pellegrini submitted inflated bills or billed for services not provided. The Bar does not contest this finding.
With regard to the order to show cause, the referee recommended holding Pellegrini in contempt for failing to comply with the emergency order of suspension. The referee found that Pellegrini failed to provide the Bar within thirty days of the order with the requisite affidavit listing all clients who were furnished a copy of the emergency suspension order. Although he responded with information relating to his existing clients, he did not provide the information in the form required by the Rules Regulating The Florida Bar. Pellegrini also failed to provide the Bar within applicable time limits with copies of the notice of suspension sent to all financial institutions where he maintained trust accounts. However, there was only one bank where he maintained his trust account and he claimed that the bank had actual notice.
Count III of the complaint involved allegations related to Pellegrini's representation of Hilda Ingles in a personal injury action. The referee found that Pellegrini collected an excessive fee (forty percent) from Ms. Ingles and deducted $1,905 from her settlement amount as reimbursement for pretrial deposition costs, although no depositions were ever taken. Although the money was later refunded, the referee found that Pellegrini debited Ingles' account for filing a complaint, although suit was never filed. The referee recommended finding Pellegrini guilty of violating rules 4-1.15(a), 4-1.5(f)(4)(B), 4-8.4(c), and 5-1.1(a), Rules Regulating The Florida Bar.
The Bar disputes the referee's findings and recommendation on the remaining claim in count III. The Bar alleged that Pellegrini fabricated a witness to Ingles's accident and used the fabricated testimony to negotiate a settlement and to challenge a traffic citation against Ingles.
Ingles consulted with Pellegrini, telling him that one week earlier she had been involved in a collision with a Dade County bus on a downtown Miami street at 6 a.m. After the accident an unidentified man approached her and asked if she was all right. Ingles knew of no other witness to the accident. Ingles was given a ticket and cited as being responsible for the accident. Pellegrini initially declined to take the case. He changed his mind when the unidentified witness Arturo Rivero, a long-time employee of Pellegrini's, appeared and gave a statement absolving Ingles of fault and blaming the bus driver for the accident. After Pellegrini presented Dade County claims officials with Rivero's statement, the county investigated the claim and ultimately settled with Ingles. The referee found that although Rivero's presence at the accident was questionable, the Bar failed to meet its burden of proof on this claim.
The Bar argues that the referee's finding on this claim is clearly erroneous and contradicted by the record. In Bar discipline proceedings, evidence of misconduct must be clear and convincing for a finding of guilt. See Florida Bar v. Marable, 645 So.2d 438, 442 (Fla.1994); Florida Bar v. McClure, 575 So.2d 176, 177 (Fla.1991). A referee's findings of fact regarding guilt are presumed correct and should be upheld unless clearly erroneous or without support in the record. See Florida Bar v. Beach, 699 So.2d 657, 660 (Fla.1997); Florida Bar v. Rue, 643 So.2d 1080, 1082 (Fla.1994); Florida Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986).
The Bar's evidence on this claim was circumstantial. Rivero worked as a handyman on properties owned by Pellegrini and Pellegrini paid Rivero for his work from client trust funds. The Bar urges that Rivero's stated reason for being in downtown Miami at 6 a.m. was suspect. Pellegrini testified in deposition that he thought Rivero may have been purchasing supplies. Rivero told an investigator hired by Dade County to investigate Ingles' claim that he was working in that area. Ingles denied that the witness had given her his name and phone number although Rivero told the investigator that he had done so. However, Ingles testified that she was badly shaken after the accident. She was taken to the hospital by ambulance immediately after the accident.
There is also evidence in the record that investigators employed by Dade County found Rivero steadfast in his story and could find no holes in his version of the events. The county ultimately determined the bus driver to be partially at fault in the accident. 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 decline to do so here because we do not find the referee's findings on this claim to be clearly erroneous or without support in the record.
The Bar also challenges the referee's findings and recommendations on count IV. In that count, the Bar alleged that Pellegrini billed clients for services allegedly performed by Dr. Arnaldo Carmouze, Sr., which were not actually rendered, and pocketed the money himself. The work was allegedly performed at a clinic owned by Dr. Carmouze's son, Arnaldo Carmouze, Jr.
The referee recommended finding Pellegrini not guilty on count IV, based on the following factual findings. Pellegrini referred his clients' files to Dr. Carmouze, Sr., for review of their medical records and their treatment by other medical providers. According to client records, Dr. Carmouze submitted invoices for review of the medical records for eight of Pellegrini's clients at a charge of $500 per hour. Pellegrini deducted the charges from the clients' final settlements. At the hearing, Dr. Carmouze, Sr., indicated that he did not remember performing any work for Pellegrini or receiving...
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