The Florida Bar v. Whitaker

• Decision Date: 09 April 1992
• Docket Number: No. 77837,77837
• Citation: 596 So.2d 672
• Parties: THE FLORIDA BAR, Complainant, v. Hurley P. WHITAKER, Respondent. 596 So.2d 672, 17 Fla. L. Week. S240
• Court: Florida Supreme Court

Page 672

596 So.2d 672

THE FLORIDA BAR, Complainant, v. Hurley P. WHITAKER, Respondent.

No. 77837.

596 So.2d 672, 17 Fla. L. Week. S240

Supreme Court of Florida.

April 9, 1992.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Kristen M. Jackson, Bar Counsel, Orlando, for complainant.

R. Lee Dorough, Whitaker, Dorough and Whitaker, Orlando, for respondent.

PER CURIAM.

The Florida Bar petitions for review of a referee's report recommending that respondent, Hurley Whitaker, receive an admonishment and be placed on supervised probation for two years. We agree with the Bar that an admonishment is insufficient discipline in this case, and therefore issue a public reprimand. ¹

The misconduct in this case involves respondent's representation of the client regarding the alleged sexual molestation of her three and one-half year old daughter by an employee of the nursery where the child had been placed in day care. In January 1986 the client signed a contingency fee agreement with respondent's law firm and respondent agreed to investigate the case but did not initially promise to file suit. Respondent eventually filed claims with the Florida Insurance Guaranty Association (FIGA) because the insurance company for the day care center had become insolvent. ² However, respondent failed to file suit within the one-year statute of limitations for FIGA actions because he mistakenly thought the limitations period was four years. See Secs. 95.11(5)(d), 631.68, Fla.Stat. (1985). ³ Consequently, the client's suit against the day care center and its employee is now time-barred. ⁴

In addition to neglecting to file suit, the record demonstrates, and respondent admits, that respondent failed to properly communicate with his client throughout the case and did not keep her advised of matters transpiring in her case. Indeed, as the referee indicated, the only time the client could get a response to her repeated telephone calls and letters was after she would contact The Florida Bar.

After a hearing, the referee found respondent guilty of violating rule 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client) and rule 4-1.4 (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) of the Rules Regulating The Florida Bar. The referee found that respondent had no prior disciplinary history. Accordingly, the referee recommended the following discipline:

I recommend that Respondent be admonished as provided in rule 3-5.1(a), Rules of Discipline before the Grievance Committee of the Ninth Judicial Circuit, and that Respondent be placed on probation for 24 months as provided in Rule 305.1(c) and Rule 3-5.1(d), Rules of Discipline. The terms of probation recommended are that at least each ninety days, that Respondent review with a designated member of the Ninth Judicial Circuit Grievance Committee, his case load and that a report of the status of each of Respondent's open litigation files be made by Respondent in writing to the Grievance Committee with information regarding the diligent prosecution of the case and communication with the client. It is recommended that a probation report be made by the Grievance Committee each six months on Respondent's evaluation and that the report be filed with the Bar Counsel with a copy to Respondent. It is further recommended that Respondent submit, within thirty days of the Disciplinary Order, a written plan of procedure and policy to facilitate adequate communication with clients and a "tickler" system to remind him to use diligence in prosecution of his cases, such plan to be filed with the Ninth Judicial Circuit Grievance Committee, with a copy to Bar Counsel.

We approve all the referee's recommendations except as to the admonishment. Our case law demonstrates that public reprimand is more appropriate in cases such as this which involve neglect of client matters. ⁵ See The Fla. Bar v. Riskin, 549 So.2d 178, 179 (Fla.1989) (imposing public reprimand for neglecting a legal matter and allowing statute of limitations to run); The Fla. Bar v. Knowlton, 527 So.2d 1378, 1379 (Fla.1988) (approving referee's recommendation of public reprimand for same); The Fla. Bar v. Schilling, 486 So.2d 551, 552 (Fla.1986) (approving referee's...