The Florida Bar v. Garland, 81981
| Decision Date | 09 March 1995 |
| Docket Number | No. 81981,81981 |
| Citation | 651 So.2d 1182 |
| Parties | 20 Fla. L. Weekly S119 THE FLORIDA BAR, Complainant, v. James Alfred GARLAND, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Bonnie L. Mahon, Bar Counsel, Tampa, for complainant.
James A. Garland, pro se.
Donald A. Smith, Tampa, and Donald B. Hadsock, Bradenton, for respondent.
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by James Alfred Garland. We have jurisdiction. Art. V, Sec. 15, Fla. Const.
The referee recommends that Garland be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-1.5(a)(1), (2) (); rule 4-8.1(a) (); rule 4-8.4(c) (); rule 4-1.15(a) (); and rule 5-1.1 ().
The recommendations as to guilt are based on the following findings of fact. In July 1991, Garland was appointed as personal representative and served as attorney for the estate of Lois Locke. The estate was valued at approximately $590,000. Garland transferred estate monies representing earned and unearned fees from the estate account to his trust account, commingling the earned fees with client property. Thereafter, he misappropriated estate funds by transferring both earned and unearned fees into his general account, thereby paying himself fees in excess of those he was entitled to receive. Garland altered time records and his fee per hour to justify the unearned fees taken from the estate. He made intentional misrepresentations to a residual beneficiary of the estate as to the hours expended and the fee to be charged and gave the beneficiary a false accounting. He paid himself a total of $32,956.30 in fees. According to expert testimony a reasonable fee would have been between $15,000 and $18,000. Garland further misappropriated funds that were intended for the costs and expenses of the Locke estate.
During the proceedings, Garland falsely advised the Grievance Committee that certain estate funds had been deposited in a special savings account for the estate, when the funds had been placed in Garland's general account. He also made false statements to the Bar's investigator.
The referee recommends that Garland be suspended from the practice of law for three years and thereafter until he can show rehabilitation. As a condition of the suspension, the referee recommends that Garland be required to pay the Bar's costs and make restitution to the beneficiaries of the estate, and pass the ethics portion of the Bar exam.
Garland seeks review. He maintains that the Bar was precluded from entertaining the complaint of the beneficiary in light of the fact that the beneficiary executed a waiver of accounting and consent to discharge which was filed in the probate proceedings. Garland also challenges a number of the findings of fact and recommendations as to guilt and maintains that since all the alleged violations stem from a fee dispute a three-year suspension is an excessive sanction.
First, we reject Garland's contention that the Bar was precluded from proceeding against him by the doctrines of res judicata, estoppel and prior consent. Rule Regulating The Florida Bar 3-4.4 provides that "the acquittal of the respondent in a criminal proceeding shall not necessarily be a bar to disciplinary proceedings nor shall the findings, judgment, or decree of any court in civil proceedings necessarily be binding in disciplinary proceedings." Disciplinary proceedings are not concerned with the issues addressed in criminal or civil proceedings. Rather, disciplinary proceedings are concerned with violations of ethical responsibilities imposed on an attorney as a member of The Florida Bar. Florida Bar v. Swickle, 589 So.2d 901, 905 (Fla.1991). Thus, the documents filed and judgments entered in the prior probate proceeding do not act as a bar to this disciplinary action.
Next, we address Garland's challenges to the referee's report. A referee's findings of fact are presumed correct unless they are clearly erroneous or lacking in evidentiary support. Where the referee's findings are supported by competent, substantial evidence, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Florida Bar v. MacMillan, 600 So.2d 457 (Fla.1992); Florida Bar v. Stalnaker, 485 So.2d 815 (Fla.1986). The record in this case supports the referee's findings of fact. Those findings support the recommendations of guilt, with the exception of the recommendation that Garland be found guilty of charging a clearly excessive fee under rule 4-1.5(a)(1). Subdivision(a)(1) defines a fee as clearly excessive for disciplinary purposes when "after review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee exceeds a reasonable fee for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney." We agree with Garland that in light of sections 733.617 and 733.6171, Florida Statutes (1993), which provide the manner by which reasonable fees to the personal representative and attorney of an estate are to be determined, the referee's recommendation as to this violation must be rejected. Although sections...
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...rule provisions and concluding that the record evidence was "sufficient" to support the recommendations as to guilt); Fla. Bar v. Garland, 651 So.2d 1182 (Fla.1995) (same); Fla. Bar v. Jackson, 494 So.2d 206 (Fla.1986) (same); Fla. Bar v. Guard, 453 So.2d 392 (Fla.1984) (denoting general ru......
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