The Florida Bar v. Mitchell, 81901
| Decision Date | 27 October 1994 |
| Docket Number | No. 81901,81901 |
| Parties | 19 Fla. L. Weekly S553 THE FLORIDA BAR, Complainant, v. Marzell MITCHELL, Jr., Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Luain T. Hensel, Bar Counsel, Ft. Lauderdale, for complainant.
Marzell Mitchell, Jr., pro se.
The respondent, Marzell Mitchell, Jr., seeks review of the referee's report in this attorney-disciplinary action. We have jurisdiction 1 and adopt the referee's recommendations as to guilt and discipline.
After conducting an examination of Mitchell's trust account, The Florida Bar filed a six count complaint charging him with various trust account violations during the period January 1, 1989 through February 28, 1991. As to count I, the referee found that during the relevant period, Mitchell deposited personal funds and legal fees into his trust account, which constituted commingling. As to count II, the referee recommends that Mitchell be found not guilty. As to count III, the referee found that during the period of the review of his trust account, Mitchell failed to maintain the minimum trust account records required by the Rules Regulating Trust Accounts. As to count IV, the referee found that during the relevant period, Mitchell failed to follow minimum trust accounting procedures. As to count V, the referee found that a client ledger card and closing statement submitted to the Bar in relation to a worker's compensation settlement did not accurately reflect the deposits to and disbursements from Mitchell's trust account. However, the referee found the incorrect closing statement and ledger card were the result of Mitchell's failure to understand trust account requirements rather than an intentional misrepresentation. As to count VI, the referee found that during the period of the Bar's review, Mitchell failed to remit interest earned on his trust account to The Florida Bar Foundation.
The referee recommends that Mitchell be found guilty of violating 1) as to count I, Rules Regulating The Florida Bar 4-1.15(a) () and 4-8.4(a) (); 2) as to count III, Rules Regulating The Florida Bar 4-1.15(d) () and 4-8.4(a) (violating Rules of Professional Conduct), 5-1.1(c) (), 5-1.2(b)(2) (), 5-1.2(b)(3) (), 5-1.2(b)(5) (), and 5-1.2(b)(6) (); 3) as to count VI, Rules Regulating The Florida Bar 4-1.15(d) (), 4-8.4(a) (violating Rules of Professional Conduct), 5-1.1(c) (), 5-1.2(c)(1)(a) (), and 5-1.2(c)(1)(b) (); 4) as to count V, Rules Regulating The Florida Bar 4-1.15(a) (commingling); and 5) as to count VI, Rules Regulating The Florida Bar 4-1.15(d), 4-8.4(a) (violating Rules of Professional Conduct), and 5-1.1(d)(2) ().
Prior to making a recommendation as to the appropriate discipline, the referee considered Mitchell's personal history and his past disciplinary record. In 1978, Mitchell received a private reprimand for failing to maintain appropriate trust accounting records. It was determined this failure was the result of ignorance rather then wilful misconduct. In 1986, Mitchell received a public reprimand and was placed on probation for two years for failing to maintain adequate trust accounting records and for commingling personal funds with trust funds. The Florida Bar v. Mitchell, 493 So.2d 1018 (Fla.1986). The referee also considered in aggravation Mitchell's failure to appear for a properly noticed...
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