The Florida Bar v. Mastrilli, 78942
| Decision Date | 28 January 1993 |
| Docket Number | No. 78942,78942 |
| Citation | 614 So.2d 1081 |
| Parties | 18 Fla. L. Week. S88 THE FLORIDA BAR, Complainant, v. Kenneth W. MASTRILLI, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Joseph A. Corsmeier, Asst. Staff Counsel, Tampa, for complainant.
Donald A. Smith, Jr. of Smith and Tozian, P.A., Tampa, for respondent.
This cause is before the Court on complaint of The Florida Bar for review of the referee's recommendation that Kenneth W. Mastrilli, an attorney, be disciplined for ethical violations. We have jurisdiction. Art. V, Sec. 15, Fla. Const.
The referee's findings of fact are supported by substantial competent evidence and thus are accepted by this Court. In 1989, Mastrilli undertook representation of two women allegedly injured in an accident while one was the driver and one was the passenger in the same vehicle. Mastrilli issued demand letters on behalf of the passenger against the insurance carrier of the driver on grounds the latter had been negligent, resulting in alleged injuries to the passenger totalling $100,000.00. The driver's insurance policy would cover only $50,000.00 of any loss.
When the insurance company denied payment, Mastrilli then filed suit in 1990 against the driver on behalf of the passenger. In effect, he filed suit against his own client in the same matter for which he had been retained. The driver terminated Mastrilli's employment when she received the complaint and learned she had been sued by her own attorney. The passenger's lawsuit eventually was settled for $20,000.00, within the limits of liability.
The referee concluded that Mastrilli had violated Rules of Professional Conduct 4-1.7(a) and 4-1.7(b) and noted that Mastrilli has shown no remorse for his actions. The referee then recommended discipline of six months' suspension.
Mastrilli now argues that he was merely negligent in failing to discover a conflict of interest and that, in any event, no harm has come to either client. We do not agree with Mastrilli's representation that he was merely negligent. Mastrilli undertook representation of both the passenger and driver, and he either knew or should have known that their interests were adverse when he sued one on behalf of the other. The Florida Standard for Imposing Lawyer Sanctions 4.32 states:
Suspension is appropriate when a lawyer knows of a conflict of interest and does not...
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