The Florida Bar v. Sweeney, No. 87
| Decision Date | 27 August 1998 |
| Docket Number | No. 87, No. 526, No. 318, No. 89, No. 495. |
| Citation | 730 So.2d 1269 |
| Parties | THE FLORIDA BAR, Petitioner, v. Patrick Robert SWEENEY, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and Joseph A. Corsmeier, Assistant Staff Counsel, Tampa, for Complainant.
Scott K. Tozian of Smith and Tozian, P.A., Tampa, for Respondent.
This cause is before us on petition of The Florida Bar to review the referee's report and recommendation regarding the discipline of respondent, Patrick Robert Sweeney, for alleged ethical violations. We have jurisdiction. Art. V, § 15, Fla. Const. For the reasons expressed in this opinion, we suspend respondent from the practice of law for ninety-one days.
By order dated February 20, 1997, the referee consolidated the following disciplinary matters.
In 1993, respondent represented Ms. George in a lawsuit against Oak Casualty, Ms. George's insurance carrier, for outstanding medical bills incurred from injuries sustained in an automobile accident. Ms. George owed money to eight different medical providers, including Tampa General Hospital and Dr. Jeffrey Tashman.
In August 1993, pursuant to a settlement agreement, Oak Casualty delivered to respondent nine settlement checks totaling $4,796.72. One check was made payable solely to Ms. George, and the other eight checks were made payable jointly to Ms. George and the specific health care provider named therein.1 Respondent did not have the authority or consent of the named payees to endorse any of these checks. Despite his lack of authority, respondent endorsed each of the nine checks and then deposited the funds into his law firm's trust account.
Respondent paid the medical providers as Oak Casualty directed, except for two: Tampa General Hospital and Dr. Tashman. Instead of paying Dr. Tashman the $224 that Oak Casualty directed that Dr. Tashman receive, respondent used the money earmarked for Tampa General and paid Dr. Tashman approximately $2000. Respondent testified on his own behalf that the reason he did not pay Tampa General was his belief that Medicaid would pay Tampa General's bill. Respondent's distribution of the settlement proceeds was accomplished without the knowledge or consent of Oak Casualty, Tampa General, or Medicaid.
Based on these facts, the referee recommended that respondent be found guilty of violating Rules Regulating The Florida Bar 3-4.3, 4-1.15(a), (b), 4-8.4(a), (c), and 5-1.1, and not guilty of violating rules 3-4.4, 4-5.3, 4-8.1(a), (b) and 4-8.4(b). The referee made a specific finding that the Bar failed to prove by clear and convincing evidence that respondent intended to defraud anyone by endorsing the settlement checks without authority, depositing the funds into his trust account, and unilaterally altering the distribution of the funds.
In 1993, respondent began representing Maximo Guevara concerning a workers' compensation claim arising from injuries sustained in 1992. A settlement agreement was reached in which Guevara would receive a single payment of $32,000, which included a $5,000 attorney's fee. Respondent filed Guevara's signed settlement stipulation and affidavit agreeing to the settlement terms with the judge of compensation claims (JCC). Guevara claimed he never signed the affidavit agreeing to the terms of the settlement. The referee found that the signature on the affidavit was not Guevara's. While the referee found that there was insufficient evidence to establish that it was respondent who forged Guevara's name, he did find that there was sufficient evidence to establish that someone in respondent's office knowingly signed Guevara's name to the affidavit. Accordingly, the referee found that respondent was guilty of negligent supervision of his staff and for negligently submitting a fraudulent affidavit to the judge.
Furthermore, respondent stipulated that in August 1995 he received a settlement check from State Farm Fire and Casualty Company for $32,000, which he signed and deposited into his trust account. Pursuant to the mediation agreement, respondent disbursed $27,000 to Guevara and $5000 to himself. The referee did not make a finding of whether respondent signed the settlement check without authority. The referee did find, as in the previous case, that there was a lack of an intent to defraud. The referee recommended that respondent be found guilty of violating rules 3-4.3 and 4-8.4(a), (d), and not guilty of violating rules 3-4.4, 4-1.2, 4-1.4(a), (b), 4-1.15(b), 4-3.3(a), 4-3.4(b), 4-8.1(a), and 4-8.4(b), (c).
An audit of respondent's trust account from the period of January 1, 1995, to December 31, 1995, revealed shortages. However, the Bar's brief indicates that the shortages were either inadvertent or beyond respondent's control. Based on a stipulation, the referee recommended that respondent be found guilty of violating rules 5-1.1 and 5-1.2 regarding trust accounts.
Prior to recommending discipline for respondent on the consolidated cases, the referee considered the following regarding the respondent's personal history: (1) respondent was born in 1948; (2) respondent was admitted to the Bar in October 14, 1983; and (3) respondent has two prior private reprimands.2 The referee found in aggravation a pattern of misconduct and multiple offenses. In mitigation, the referee found the following: (1) absence of a dishonest or selfish motive; (2) timely good-faith effort to make restitution or to rectify consequences of misconduct; (3) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (4) character or reputation; and (5) interim rehabilitation.
As to cases 87,526 and 89,318, the referee recommended the same discipline:
A public reprimand and one year probation. I recommend these conditions of probation: (1) the Respondent contact The Florida Bar's Law Office Management Advisory Service within ten days of the Supreme Court's decision in this case and cooperate in assessing the organizational needs of his office and implementing all of its recommendations; (2) the Respondent will not sign a client's signature to any checks or other documents without having and retaining in the file a written power of attorney; (3) the Respondent will not sign any other person's signature, except his own, to any checks that come through his office without having and retaining in the file a written power of attorney; (4) the Respondent will sign an affidavit that he has complied with these requirements prior to the end of the term of probation; (5) the Respondent will pay $3,515.26 to The Florida Bar before the end of his term of probation.
Pursuant to the stipulation entered between the parties, no additional discipline was recommended for the trust violations under case 89,495.
The Bar contends that the referee's findings of fact as to cases 89,526 and 89,318 are not supported by the evidence. Our standard of review regarding a referee's factual findings is as follows:
A referee's findings of fact regarding guilt carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. Absent a showing that the referee's findings are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. The party contending that the referee's findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions.
Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996) (citations omitted).
Regarding case 87,526, the Bar claims that the referee's failure to find an intent to defraud is clearly erroneous. While we approve the...
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