The Florida Bar v. Niles, 81145

• Decision Date: 27 October 1994
• Docket Number: No. 81145,81145
• Citation: 644 So.2d 504
• Parties: 19 Fla. L. Weekly S554 THE FLORIDA BAR, Complainant, v. Peter L. NILES, Respondent.
• Court: Florida Supreme Court

Page 504

644 So.2d 504

19 Fla. L. Weekly S554

THE FLORIDA BAR, Complainant, v. Peter L. NILES, Respondent.

No. 81145.

Supreme Court of Florida.

Oct. 27, 1994.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jan Wichrowski, Bar Counsel, Orlando, for complainant.

Wm. J. Sheppard and D. Gray Thomas of Sheppard and White, P.A., Jacksonville, for respondent.

PER CURIAM.

We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by respondent attorney Peter L. Niles. Niles petitions for consideration of the findings and recommendations set forth in the referee's report. The Florida Bar cross-petitions for review of the referee's recommended sanction that Niles be suspended from the practice of law for one year with proof of rehabilitation required prior to reinstatement. The Florida Bar is seeking disbarment. We have jurisdiction. Art. V, Sec. 15, Fla. Const.

The referee found that in 1990, Niles was appointed by the court as a special public defender to represent defendant Deidre Hunt in a first-degree murder case. On September 13, 1993, Niles' client, Ms. Hunt, was placed in Broward Correctional Institution (BCI) pursuant to her guilty plea to first-degree murder, for which she received the death penalty. State of Florida Department of Corrections' rules prohibit media interviews of such inmates during the first two to three weeks of their initial orientation. When media interviews are allowed, they must be personally approved by the BCI superintendent.

On September 21, 1993, Niles contacted the correctional superintendent and requested permission for his access to Ms. Hunt. He advised the superintendent that, as Ms. Hunt's counsel, he had made arrangements with the prosecutor and the judge to videotape Ms. Hunt at BCI regarding testimony concerning her codefendant. Niles indicated he would bring a law clerk and a cameraman to assist with the videotaping. The superintendent approved the request for a permissible attorney-client visit set for September 26, 1993.

On September 26, Niles arrived at BCI with a television reporter for the program "A Current Affair," as well as a cameraman. The superintendent was not present. Niles failed to clarify that the individuals with him were not the ones authorized by the superintendent. Security procedures of BCI were breached by Niles since only the minimal security required for attorney-client consultations was present during the media interview.

Although Ms. Hunt had been previously advised to expect her statement to be taken for the court, she was advised at the beginning of the interview that she was being taped for "A Current Affair." Niles further told her that he had not received any money from the interview and that she could expect no payment for the interview.

As broadcast on television, the interview, entitled "Deadly Deidre," included admissions from Ms. Hunt and excerpts from a videotape which showed Ms. Hunt shooting and killing Kevin Ramsey. The interview took place while Ms. Hunt's appeal was pending.

During the referee's hearing, Niles testified that he received $5,000 from "A Current Affair" based solely on negotiations occurring five to six months before the interview. He further stated that he was to receive the fee only if the interview was aired.

The referee's findings were in part as follows.

(1) Respondent lied to prison officials and to his client regarding the nature of the September 26, 1990 interview.

(2) Respondent lied by denying his receipt of a $5,000 fee from "A Current Affair." Respondent, as a special public defender, was compensated by order of the court but failed to advise the court of the $5,000 fee received from "A Current Affair." Only after negotiations with the assistant state attorney did respondent deliver a $5,000 check to the County of Volusia. Upon initial delivery of the $5,000 check, it was returned for insufficient funds.

(3) Respondent failed to advise his client of the planned interview with "A Current Affair" and, thus, obtained the interview of his client without her informed consent. Further, in the interview, respondent's client was cast in an exploitative and negative manner.

(4) Respondent revealed client information without his client's consent by obtaining her interview without her waiver, authorization, or permission.

(5) Respondent acquired a proprietary interest in his client's case by contracting with "A Current Affair" to receive a $5,000 fee in return for an interview with his client.

The referee recommended that Niles be found guilty of violating the following provisions of the Rules Regulating the Florida Bar: Rule 3-4.3 (misconduct and minor misconduct) of the Rules of Discipline; Rules 4-1.2(a) (scope of representation), 4-1.4 (communication), 4-1.5 (fees for legal services), 4-1.6(a) (confidentiality of information), 4-1.7(b), 4-1.8(b), (d), (i), 4-1.9(b) (conflict of interest), 4-1.15 (safekeeping property), 4-2.1 (adviser), 4-4.1(a) (truthfulness in statements to others), 4-4.4 (respect for rights of third persons), and 4-8.4(b), (c), (d) (misconduct) of the Rules of Professional Conduct.

Niles contends that the referee's findings of misconduct are not supported by legally-sufficient evidence. He asserts that the findings do not meet the standard of proof "by clear and convincing evidence." In a referee trial of a prosecution for professional misconduct, the Bar has the burden of proving its accusations by clear and convincing evidence. The Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970). However, this court's review of a referee's findings of fact is not in the nature of a trial de novo. The responsibility for finding facts and resolving conflicts in the evidence is placed with the referee. The Florida Bar v. Hoffer, 383 So.2d 639 (Fla.1980). The referee's findings "should not be overturned unless clearly erroneous or lacking in evidentiary support." The Florida Bar v. Wagner, 212 So.2d 770, 772 (Fla.1968); The Florida Bar v. Neely, 502 So.2d 1237 (Fla.1987). Further, rule 3-7.6(k)(1)(A) of the Rules Regulating The Florida Bar provides that the referee's findings of fact as to items of misconduct charged "shall enjoy the same presumption of correctness as the judgment of the trier of fact in a civil proceeding." See The Florida Bar v. Hooper, 509 So.2d 289 (Fla.1987).

Here, the referee found that Niles engaged in extremely serious violations of the Rules Regulating the Florida Bar with lies and misrepresentations to his client, as well as to BCI, the public, and the legal profession as a whole through a sensational and derogatory media interview.

The referee's finding is supported by competent, substantial evidence and was not...