The Florida Bar v. McCain
| Decision Date | 15 June 1978 |
| Docket Number | No. 52068,52068 |
| Parties | THE FLORIDA BAR, Complainant, v. David Lucius McCAIN, Respondent. |
| Court | Florida Supreme Court |
Bernard H. Dempsey, Jr., Bar Counsel, Orlando, and Wilson J. Foster, Jr., Asst. Bar Counsel, Tallahassee, for complainant.
R. J. Beckham of Beckham, McAliley & Proenza, Jacksonville, for respondent.
Under the Integration Rule of The Florida Bar, the Board of Governors, serving as an adjunct or administrative agency of this Court, may initiate disciplinary proceedings against an attorney for any improper act bearing on his current fitness to practice law, even when that act occurred while such attorney held judicial office. The Florida Bar v. McCain, 330 So.2d 712 (Fla.1976). In accordance with this rule, the Bar proceeded against David Lucius McCain, a former Justice of the Supreme Court of Florida, charging him with various acts of misconduct, the more significant of which will be discussed hereafter. The Referee, appointed by the Bar, found McCain guilty of those acts charged in Counts 3A and 3C of the Bar's Second Amended Complaint, 1 and as to each of these counts David Lucius McCain began the practice of law in Florida in August, 1957, and continued that practice until August, 1967, when he was appointed to the Fourth District Court of Appeal. During that ten year period he served for several years as City Attorney for the City of Fort Pierce. At no time was McCain charged with misconduct as a practicing attorney. On December 10, 1970, he was appointed to the Supreme Court of Florida by Governor Claude Kirk, after being an unsuccessful candidate for the Court in 1968. He won election to the Court in 1972. In May, 1974, McCain was notified that the Judicial Qualifications Commission was conducting an investigation into certain alleged acts of misconduct committed by McCain while a judicial officer of this state. The Referee found that McCain did not receive notice of the filing of formal charges. In April, 1975, the Select Committee on Impeachment of the Florida House of Representatives also began an investigation of McCain. The findings of that committee served as the basis for the probable cause findings made by The Florida Bar's Board of Governors. Effective August 31, 1975, McCain resigned his position as a Justice of the Supreme Court of Florida.
recommended that he be "publicly reprimanded and suspended from the practice of law for one year and thereafter until he proves rehabilitation in accordance with Integration Rule 11.10(2)." By Petition for Review filed in this Court, The Florida Bar recommended disbarment. We approve the Findings of Fact and Conclusions of Law entered by the Referee but agree with the Bar that McCain should be disbarred.
On September 25, 1970, Richard Nell, a union official, was convicted of bribery. He appealed his conviction to the Second District Court of Appeal where the case was heard on June 10, 1971 by Chief Judge Pierce and Judges Mann and McNulty. In July, 1972, McCain, while a Justice of the Supreme Court of Florida, and while the Nell case was pending in the district court, called Judge McNulty about the case. Prior to making the call, McCain had been notified that he was going to be supported in his race for re-election to the Supreme Court by the International Union of Operating Engineers, the labor organization which Nell headed. McCain admits making the call to Judge McNulty, admits that the call concerned the Nell case, and admits that the call was made on behalf of Nell and their common friends and supporters. A factual issue is joined because McCain testified that he could not recall whether or not he asked Judge McNulty to reverse the conviction. Judge McNulty testified, however, that it was his clear impression that during the conversation McCain asked for a reversal of the case. William Haddad, Clerk of the Second District Court of Appeal, who at the time of the McCain call was a research aide to Judge McNulty, was present during the disputed telephone conversation and testified that Judge McNulty was upset about the call and told him that "Judge McCain was trying to influence the decision of the court."
The opinion of the Second District Court of Appeal was filed in the Nell case on September 6, 1972, affirming the conviction, with then Chief Judge Pierce dissenting. Nell v. State, 266 So.2d 404 (Fla. 2nd DCA 1972). Prior to the filing of that opinion, Judge McNulty reported the McCain call to his associate, Judge Mann.
On September 20, 1972, a Petition for Writ of Certiorari was filed with the Supreme Court of Florida on behalf of Nell and the others convicted with him. Oral argument was heard on February 16, 1973. The records of the Supreme Court indicate that the file reached McCain on April 5, 1973, the other Justices having voted to reverse the District Court by a vote of four to two. McCain also voted for reversal. Nell v. State, 277 So.2d 1 (Fla.1973). Judges Mann and McNulty were upset when they learned that McCain had participated in the decision, and one of them reported the matter to a member of the Judicial Qualifications Commission.
As to this count, the Referee found:
When Justice McCain contacted Judge McNulty by telephone, he willfully and intentionally attempted to tamper with the administration of justice by making an effort to influence the decision of the Second District Court of Appeal in the Nell case. In doing so, McCain committed this act with the corrupt motive of attempting to retain and improve upon the political support he expected from the union, of which Nell was the chief executive. This violation of the ethics of his profession was so gross in nature, that I find that it bears upon his current fitness to practice law.
From 1965 to 1970, Burton Loebl, a North Miami Beach attorney was counsel for the Estate of Robert T. David. Sometime prior to July, 1972, Loebl turned the file over to another attorney, ending his participation in the case. In July, 1972, a petition for determination of Loebl's attorney's fees was filed and the matter was set for hearing before County Court Judge Leroy H. Moe. The petition involved $10,000 of final fees for Loebl's work on behalf of the estate. At about this time, McCain was campaigning for the Supreme Court and was supported in that effort by Loebl. The hearing on attorney's fees was continued several times because of the court's workload but was finally set for hearing on November 2, 1972. An attorney retained by Loebl filed a motion for continuance, and hearing on that motion was set for October 30, 1972. Both Loebl and McCain agreed that in late October, following the 1972 election, they had a conversation about the David Estate in which was pending Loebl's petition for attorney's fees. On October 28, 1972, McCain, knowing that Judge Moe would be hearing all matters on the Estate of David, and aware that a hearing was scheduled on Loebl's claim for fees, contacted Judge Moe by telephone. During that conversation McCain made clear to Judge Moe that Loebl was a personal friend and political supporter. Judge Moe specifically recalled that McCain told him that any help he could give Loebl would be appreciated. McCain claims that he made the telephone call to Judge Moe because Loebl feared unfair treatment in Broward County "since he was Jewish and practiced in Miami Beach." Loebl testified that he had no such fear and did not ask McCain to make the call.
As to the David Estate matter, the Referee found:
I find that McCain, while serving as a Justice of the Supreme Court of Florida, intentionally and corruptly attempted to tamper with and influence the results of a motion pending before Judge Moe in this case. This act was committed with the corrupt motive of doing a favor for Loebl as reward for his political support of McCain. I find that this violation of the ethics of our profession was so gross that it bears upon McCain's current fitness to practice law.
On June 8, 1968, Louis Zacchary Cohen was found guilty of possession of marijuana in such quantity as to constitute a felony. Judge Trowbridge, Circuit Judge for the 19th Judicial Circuit, presided during the trial. Upon conviction of Cohen, Judge Trowbridge withheld adjudication of guilt and sentenced Cohen to a term of four years probation. According to one of the lawyers in the case, immediately following In the summer of 1969, McCain, while a Judge of the Fourth District Court of Appeal, was contacted by Wolfie Cohen, described by McCain as an acquaintance, who told him that his son, Louis, was greatly handicapped in his efforts to complete his education by his four year period of probation. Cohen asked McCain to intercede in this matter and to help get his son's period of probation terminated. McCain admits calling Judge D. C. Smith by telephone and inquiring of Judge Smith as to the procedure involved in procuring a termination of probation. Judge Smith was unable to recall any details of that conversation. Judge Smith's testimony, however, was that he never abdicated his judicial responsibility in any matter. Soon after the McCain telephone call, Judge Smith entered an order terminating Cohen's probation. Although Judge Smith does not remember the details of the conversation with McCain, the then probation supervisor for the Florida Parole Commission, J. Vernon Wright, testified that he had a conversation with Judge Smith in which Judge Smith stated that McCain wanted Louis Cohen's probation terminated.
imposition of sentence, Wolfie Cohen, the father of Louis, and a well known politician in Miami, urged that an appeal be taken since Judge McCain was a friend and would "take good care of us if we filed an appeal." The lawyer persuaded Mr. Cohen not to take an appeal since a new trial could result in a more severe sentence.
As to this allegation the Referee found:
I find no clear and...
To continue reading
Request your trial
-
In re Lokuta
...697 A.2d 297 (Pa.Ct.Jud.Disc.1997), citing Wilhelm's Case, 269 Pa. 416, 420-21, 112 A. 560 (1921). See, also, The Florida Bar v. McCain, 361 So.2d 700 (Fla.1978) and cases cited therein. There is no statute which places limits on the time within which charges must be brought in this There a......
-
Larsen, Matter of
...only. At the highest level of culpability are ex parte communications for criminal or other clearly improper motives. In Florida Bar v. McCain, 361 So.2d 700 (Fla.1978), a former Supreme Court Justice who had resigned under a cloud of allegations of misconduct was disbarred based upon multi......
-
Petition of Post-Newsweek Stations, Florida, Inc., POST-NEWSWEEK
...process, for public acceptance of judicial judgments and decisions is manifestly necessary to their observance. Florida Bar v. McCain, 361 So.2d 700, 709 (Fla.1978) Page 781 (Sundberg, J., concurring). Consequently, public understanding of the judicial system, as opposed to suspicion, is im......
-
Cicchetti, In re
...not directly applied to disciplinary proceedings. Wilhelm's Case, 269 Pa. 416, 420-21, 112 A. 560 (1921). See, also, The Florida Bar v. McCain, 361 So.2d 700 (Fla.1978) and cases cited therein. Nonetheless, we do not accept--notwithstanding the Board's urging--that the inevitable corollary ......
-
Legal theories & defenses
...suit; and 4. injury or prejudice to the defendant in the event relief is accorded to the complainant. Source The Florida Bar v. McCain , 361 So.2d 700, 705 (Fla. 1978). See Also 1. The Florida Bar v. Lipman , 497 So.2d 1165, 1167 (Fla. 1986) (citing to McCain ). 2. Van Meter v. Kelsey , 91 ......
-
Florida's Lawyer Discipline System: What Every Attorney Needs to Know.
...(110) Bischoff, 212 So. 3d at 318; RUL. REG. FLA. BAR 3-7.6(j). (111) RUL. REG. FLA. BAR 3-7.6(k). (112) The Florida Bar v. McCain, 361 So. 2d 700, 706 (Fla. 1978). See also STANDARDS [section][section]1.3(c), 1.3 (113) RUL. REG. FLA. BAR 3-7.6(m). (114) Id.; STANDARDS [section][section]3.1......