The Florida Bar v. Vernell, 54918

• Decision Date: 14 June 1979
• Docket Number: No. 54918,54918
• Citation: 374 So.2d 473
• Court: Florida Supreme Court
• Parties: THE FLORIDA BAR, Complainant, v. Louis VERNELL, Respondent.

Page 473

374 So.2d 473

THE FLORIDA BAR, Complainant, v. Louis VERNELL, Respondent.

No. 54918.

Supreme Court of Florida.

June 14, 1979.

Rehearing Denied Sept. 20, 1979.

Paul A. Gross, Bar Counsel, Miami, and James P. Hollaway and Anita F. Dahlquist, Asst. Staff Counsels, Tallahassee, for complainant.

Louis Vernell, Miami Beach, in pro per.

PER CURIAM.

This disciplinary proceeding against Louis Vernell is before us on complaint of The Florida Bar, report of the referee, and petitions for review by Vernell and by the Bar.

A three-count complaint was filed against respondent, Louis Vernell. Count I alleged that Vernell had been charged and convicted in federal district court of the misdemeanors of failure to file income tax returns for the years 1967 through 1971 and that by such conduct he had violated Florida Bar Integration Rule, article XI, rule 11.02(3)(a) and (b), and Florida Bar Code of Professional Responsibility, DR 1-102(A)(3), (4), and (6). Count II charged that Vernell at the request of an Illinois attorney, agreed, upon the receipt of certain monies, to reinstate the criminal appeal of an out-of-state defendant which appeal had been previously filed by Vernell; that, at the time Vernell agreed to reinstate the appeal, he had no intention of taking further action in behalf of the defendant; that Vernell's representations were solely for the purpose of collecting reimbursement for his services in the first appellate proceedings; and that such conduct violated Florida Bar Code of Professional Responsibility. DR 1-102(A)(4) and (6), 6-101(A)(3), and 7-101(A) (2). In Count III, the Bar alleged that Vernell had been retained by the Thomases to represent them in a criminal case; that, at this same time, Vernell was a close friend and business partner of one Bill Johnson; that Bill Johnson was a confidential informant for the government in its case against the Thomases; that, on or about the day of trial, Vernell informed the Thomases that he had a conflict of interest due to his relationship with Johnson and advised them to plead guilty; that Vernell also informed the Thomases that, if they received a harsh sentence, they probably could void the guilty plea by claiming Vernell's conflict of interest; that Vernell had a conflict of interest in representing the Thomases, whether or not he knew that Johnson was a confidential informant; and that by such conduct Vernell violated Florida Bar Code of Professional Responsibility, DR 1-102(A)(5) and 5-105(A).

Vernell answered the complaint and denied that he was guilty of the unethical conduct charged. A hearing was conducted before a referee who made findings of fact and recommendations. As to Count I, the referee, refusing to go behind the convictions, found that Vernell had been convicted of the misdemeanors of failure to file income tax returns for the years 1967 through 1971 and that such adversely reflected on Vernell's fitness to practice law. The referee recommended that Vernell be found guilty of violating Florida Bar Integration Rule, article XI, rule 11.02(3)(a) and (b), ¹ and Florida Bar Code of Professional Responsibility, DR 1-102(A)(6), ² and that he be privately reprimanded. On Count II, while concluding that Vernell had never undertaken to represent the defendant, the referee found that Vernell had failed to make his position on representation completely clear and unambiguous to the defendant and by such conduct he was probably technically guilty of neglecting a matter entrusted to him. The referee recommended that Vernell be found guilty of violating Florida Bar Code of Professional Responsibility, DR 6-101(A)(3), ³ and that he receive a private reprimand. As to Count III, the referee did not find that Vernell's conduct involved a conflict of interest or a failure to disclose as alleged in the complaint. Instead, he found that Vernell's misconduct was in suggesting to the Thomases to plead guilty and, if they received heavy punishment, then they could have their plea set aside due to his conflict of interest. The recommendation of the referee was that Vernell be found guilty of violating Florida Bar Code of Professional Responsibility, DR 1-102(A)(5), ⁴ and that he receive a public reprimand and be placed on probation for a period of six months.

The Bar has filed a petition for review arguing that, while it concurs in the referee's findings of fact and recommendations of guilt, it believes that the recommended discipline is inappropriate. The Bar urges this Court to suspend Vernell for one year. Vernell not only opposes the Bar's petition, but he has filed a cross-petition seeking review of the referee's findings and recommendations of guilt on the three counts.

Vernell argues, as to Count I, that the uncontroverted evidence submitted to the referee clearly shows that he was not guilty of willfully failing to file tax returns and the referee erred when he determined that he could not "go behind the convictions" in deciding whether or not Vernell was actually guilty of the tax offenses. We agree with the referee that he was not empowered to "go behind the convictions." Although Vernell was entitled to, and did in fact, present mitigating circumstances to show why he should not be disciplined for the misdemeanor convictions, he did not have the right to a trial de novo before the referee for the purpose of showing that his conviction was erroneous. The Fifth Circuit Court of Appeals and the United States Supreme Court have refused to overturn his convictions, and it was not for the referee nor is it for this Court to pass on the validity of these convictions. The referee's order reveals that he considered mitigating circumstances presented by Vernell on the question of whether his convictions warranted a finding of unethical conduct. Despite these mitigating factors, the referee found Vernell guilty of violating Florida Bar Integration Rule, article XI, rule 11.02(3)(a) and (b), and Florida Bar Code of Professional Responsibility, DR 1-102(A)(3), (4), and (6). This finding is supported by the record.

As to Count II, we agree with Vernell that there is an absence of competent evidence to support the referee's finding that he was guilty of neglecting a legal matter entrusted to him. The referee's conclusion is inconsistent with his finding that Vernell "could not be guilty as charged of neglecting a legal matter entrusted to him." The only specific finding upon which guilt was based was Vernell's failure "to make the situation completely clear in unambiguous and unmistakable terms." We hold that such a finding is not sufficient.

With regard to Count...