The Florida Bar v. Heller, 39903
| Decision Date | 19 May 1971 |
| Docket Number | No. 39903,39903 |
| Citation | 248 So.2d 644 |
| Court | Florida Supreme Court |
| Parties | THE FLORIDA BAR, Complainant, v. George M. HELLER, Respondent. |
F. Perry Odom, of Ervin, Pennington, Varn & Jacobs, Tallahassee, for The Florida Bar, complainant.
George M. Heller, in pro. per.
We have for review the Referee's report recommending that the Respondent, George M. Heller, be disbarred. Rule 11.09, Integration Rule of The Florida Bar, 32 F.S.A.
Respondent Heller had performed services for Pan American Surety Company, as one of its attorneys. By an order dated December 28, 1961, entered in receivership proceedings brought by the State Treasurer against Pan American, all attorneys representing the insurer were discharged. Subsequently, the Receiver learned that Respondent Heller had nevertheless continued to represent the insurance company in the appeal of the case of Barnett v. Pan American Surety Company. Accordingly, on September 14, 1962, Heller was retained to continue to prosecute the appeal on behalf of the Receiver for an agreed contingency fee of one-third of the amount collected.
Respondent Heller collected then sum of $4,610.00 from Barnett on behalf of Pan American, but failed to turn the money over to the Receiver. The Receiver filed a petition for rule to show cause to require Heller to account for and pay over the funds or show cause why he should not do so.
The Receiver also referred the matter to The Florida Bar for investigation. Although there was no absolute proof of misconduct or bad faith, this fact should not deter an investigation. The grievance procedure should be used as a shield as well as a sword, so that the reputation of reputable attorneys may be protected from false or unwarranted claims of misconduct, or spurious complaints concerning fees. The reasonableness of a fee should, in most instances, be a matter of civil litigation. The grievance procedure should not be used as a hammer to influence an attorney in settling a controversy with his client relating to the amount of his fee.
On May 31, 1966, Heller filed his response to the rule to show cause, wherein he acknowledged that he had collected the judgment in the Barnett case, but refused to pay the proceeds (less the fee) to the Receiver. Heller asserted a claim against Pan American in the amount of $10,600.18, which had not been paid and claimed a lien on the entire proceeds of the Barnett judgment as security for the payment of his claim against the Receiver for Pan American.
This matter of Heller's lien was presented to the Circuit Judge, who ruled that he was not entitled to a lien on the funds recovered in the Barnett case, except for the agreed one-third fee. Heller was ordered to (1) immediately render an accounting to the Receiver of the funds recovered by him as attorney for the Receiver; and (2) immediately pay over the sum recovered in the Barnett case less the one-third fee.
Heller sought review of this decision and supersedeas bond was fixed in the amount due from Heller to the Receiver, plus one year's interest at six per cent per annum.
Unfortunately, the insurance company named as surety on the supersedeas bond likewise went into receivership. Upon motion of the Receiver, the trial judge ordered and directed Heller to either post a substitute supersedeas bond or appear before the Court for determination of whether he should be held in contempt. Upon his failure to file a substitute supersedeas bond or appear, the Court ordered that a warrant of attachment of the person of Heller be issued and served according to law. It does not appear that Heller was ever served with the writ of attachment. He is presently residing in the State of Texas.
The final judgment of the Circuit Judge which refused to allow the lien and required the accounting was affirmed by a per curiam decision of the District Court of Appeal. Heller v. State ex rel. Larson, 192 So.2d 501 (Fla.App.1st, 1966). Petition for writ of certiorari was denied by this Court. Heller v. State ex rel. Larson, 201 So.2d 461 (Fla.1967).
There is no evidence that Heller acted in bad faith in claiming his lien, when the matter was first presented to the Circuit Judge. The Florida Bar contends, however, that his conduct in failing to return the balance after final disposition of the case was such a conversion as to warrant disbarment.
Rule 11.02(4), Integration Rule of The Florida Bar, reads as follows:
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...act of active and deliberate dishonesty, Eagle v. Benefield-Chappell, Inc., 476 So.2d 716, 718 (Fla. 4th DCA 1985); The Florida Bar v. Heller, 248 So.2d 644, 647 (Fla.1971), we find that the record supports a conclusion that the conversion by Country Manors Association was an act of active ......
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Adams, George, Lee, Schulte, & Ward, P. A. v. Westinghouse Elec. Corp., 77-1650
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