The Florida Bar v. Brown, SC96031.

• Decision Date: 12 July 2001
• Docket Number: No. SC96031.,SC96031.
• Citation: 790 So.2d 1081
• Parties: THE FLORIDA BAR, Complainant, v. Daryl James BROWN, Respondent.
• Court: Florida Supreme Court

790 So.2d 1081

THE FLORIDA BAR, Complainant, v. Daryl James BROWN, Respondent.

No. SC96031.

Supreme Court of Florida.

July 12, 2001.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Division Director, Tallahassee, FL; and Brett Alan Geer, Assistant Staff Counsel, Tampa, FL, for Complainant.

Scott K. Tozian of Smith and Tozian, P.A., Tampa, FL, for Respondent.

PER CURIAM.

The Florida Bar has petitioned for review of the referee's report regarding alleged ethical misconduct by attorney Daryl James Brown. We have jurisdiction. See art. V, § 15, Fla. Const. Although we approve the referee's factual findings and recommendations as to guilt, we disapprove the referee's recommended discipline of a public reprimand, and suspend Brown from the practice of law for ninety days.

I. FACTS

The Bar charged Brown with violating eleven provisions of the Rules Regulating the Florida Bar. Following a hearing on contested factual issues, the referee made the following findings.

In 1992, Brown's law firm began representing Riscorp, a Sarasota-based insurance services company. Unbeknownst to Brown, since the late 1980s, Riscorp had engaged in a practice of soliciting campaign contributions from employees and others for political candidates Riscorp officials viewed as favorable to Riscorp's business. To induce such contributions, Riscorp would reimburse contributions made at its request.

In June 1994, Riscorp's president, James Malone, phoned Brown and asked him to help raise money for two candidates for state offices by soliciting a number of personal checks for $500 each. Malone agreed to reimburse these contributions by permitting Brown to "premium bill" on a certain matter that Brown's firm was handling for Riscorp.

Following the phone conversation, Brown solicited contributions from six subordinate attorneys. Each attorney wrote a $500 personal check to each of the two campaigns, as did members of the attorneys' families. Brown gathered a total of thirty-seven personal checks, each for $500, and the checks were delivered to Riscorp. Brown then directed the firm's bookkeeper to issue bonuses to himself and the other contributors to reimburse the total dollar amount contributed. Thereafter, Brown inflated the number of hours that his law firm invoiced to Riscorp to recoup the reimbursement bonuses. Riscorp paid the invoices. The referee found that at the time Brown solicited the checks from his firm, Brown was not "politically active" and was not aware of section 106.08, Florida Statutes (1993), which limits contributions to candidates for statewide office to $500 per person and provides criminal penalties for making contributions in excess of that amount. However, Brown was again contacted by Riscorp in October 1994 regarding contribution checks for another campaign. This time, Brown became suspicious and asked another attorney in his firm to research the campaign contribution statutes. When the researching attorney notified Brown of section 106.08, Brown immediately met with Malone and strongly advised him that Riscorp should cease the campaign contribution activities. Malone assured Brown that the practice would stop.

In 1996, federal authorities began investigating Riscorp's campaign contribution activities. Riscorp and several of its officers were indicted, and ultimately one Riscorp officer was convicted of a felony and other officers were convicted of misdemeanors. Thereafter, Riscorp ceased to exist as an operational entity.

Based on the above facts, the referee recommended that Brown be found guilty of violating rule 4-1.2(d) (lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent); rule 4-8.4(a) (lawyer shall not violate or attempt to violate the rules of professional conduct, or do so through the acts of another); rule 4-8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

As to discipline, the referee found in aggravation that Brown's misconduct involved a selfish motive, Brown had substantial experience in the practice of law and the misconduct involved multiple offenses. See Fla. Stds. Imposing Law. Sancs. 9.22(b), (d). The referee also found in aggravation that the client was involved in the misconduct and that the misconduct resulted in actual harm to a client or third party. See Fla. Stds. Imposing Law. Sancs. 12.1(a), (b). In mitigation, the referee found that Brown had no prior disciplinary record; had made full and free disclosure; had been cooperative; had an "enviable" reputation; had been active in pro bono activities and charitable causes; had suffered greatly from other penalties; and had expressed deep remorse. See Fla. Stds. Imposing Law. Sancs. 9.32(a), (e), (g), (k), (l). The referee recommended that Brown receive a public reprimand from the Board of Governors and be placed on probation for six months, with the conditions that Brown complete eight hours of continuing legal education and refrain from supervising other attorneys at his firm during the probationary period. The Bar now petitions for review, seeking review of several of the referee's factual findings and recommendations as to guilt, as well as the recommended sanction.

II. GUILT

The Bar challenges many of the referee's factual findings and resultant recommendations as to guilt. Our review of such matters is limited, and if a referee's findings are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. See Florida Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000)

. In light of our narrow scope of review here, we approve the referee's factual findings and recommendations as to guilt.

The Bar argues that the referee's finding that Brown was not aware of section 106.08, Florida Statutes (1993) (prohibiting campaign contributions in excess of $500) at the time Malone asked him to solicit contributions is clearly erroneous. At the hearing below, there was testimony on both sides of this matter, with Malone testifying that Brown informed him of section 106.08 prior to soliciting the contributions, and with Brown testifying that he was not aware of section 106.08 at the time. The referee resolved this testimony by crediting Brown's version of events, and although the Bar contends that the referee's credibility call was incorrect, we have long held that the referee is in a unique position to determine such evidentiary matters. See Florida Bar v. Fredericks, 731 So.2d 1249, 1251 (Fla.1999)

("[T]he referee is in a unique position to assess the credibility of witnesses, and [the referee's] judgment regarding credibility should not be overturned absent clear and convincing evidence that [the referee's] judgment is incorrect."). Although other reasonable persons might have reached a different conclusion, it is not our role to reweigh the evidence. Moreover, the fact that the referee found that Brown subsequently became suspicious when he was contacted again by Malone, asked another attorney to research the law and thereafter met with Malone to advise him to stop its reimbursement activities is also consistent with a finding that Malone lacked the intent to violate the campaign laws when he first agreed to the reimbursement scheme. The referee's finding that Brown was unaware of section 106.08 when he solicited the contributions is supported by Brown's testimony, and we decline to reach a different factual finding here.

The Bar next contends that regardless of when Brown became aware of section 106.08, his solicitation of the contributions constituted a first-degree misdemeanor under section 106.08(7)(a), Florida Statutes (1993), and therefore the referee should have recommended guilt as to rule 4-8.4(b) (lawyer shall not commit criminal act which reflects adversely on lawyer's honesty, trustworthiness, or fitness). The referee found that "[t]he evidence did not establish that [Brown] knowingly and willfully violated section 106.08." Rule 4-8.4(b) provides that a lawyer is not to commit a criminal act "that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." Assuming without deciding that a violation of section 106.08 does not require that the violation be knowing and willful,¹ we conclude that a negligent violation of the statute in this instance does not reflect adversely on Brown's honesty, trustworthiness, or fitness. We therefore approve the referee's recommendation as to rule 4-8.4(b). The Bar also argues that the referee should have recommended guilt as to rule 4-1.1 (lawyer shall provide competent representation) for failing to realize the fraudulent nature of the reimbursement scheme proposed by Malone. However, the referee found that Brown "was not contacted by Riscorp for his opinion regarding the reimbursement practice," and therefore Brown's failure "to immediately recognize the potential impropriety of Riscorp's activity does not reflect on [Brown's] competence." The referee's interpretation of rule 4-1.1 is supported by the comment to the rule, see R. Regulating Fla. Bar 4-2.1, cmt. ("In general, a lawyer is not expected to give advice until asked by the client."), and we approve the referee's recommendation of not guilty as to rule 4-1.1.

Lastly, the Bar argues that Brown violated rule 4-1.13(b) (corporation's lawyer to proceed in best interests of corporation when lawyer knows that officer is engaged in illegal conduct) for failing to report Malone's illegal activity to a higher authority in Riscorp. However, the referee recommended a finding of not guilty because Brown was unaware of the scope of Riscorp's reimbursement practices, and when he became aware of section 106.08, Brown advised Malone, then president of Riscorp, against the practice, and was assured by Malone that the practice would cease. Under ...