The Florida Bar v. Charnock, 81857

• Decision Date: 26 October 1995
• Docket Number: No. 81857,81857
• Citation: 661 So.2d 1207
• Parties: 20 Fla. L. Weekly S549 THE FLORIDA BAR, Complainant, v. William T. CHARNOCK, III, Respondent.
• Court: Florida Supreme Court

Page 1207

661 So.2d 1207

20 Fla. L. Weekly S549

THE FLORIDA BAR, Complainant, v. William T. CHARNOCK, III, Respondent.

No. 81857.

Supreme Court of Florida.

Oct. 26, 1995.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Carlos E. Torres, Bar Counsel, Orlando, for complainant.

James Martin Brown of the Law Offices of James Martin Brown, Brooksville, for respondent.

PER CURIAM.

This matter is before the Court on respondent's petition for review of a referee's report in a Florida Bar disciplinary proceeding. The referee recommended that respondent William T. Charnock III be suspended from the practice of law for a period of ninety days with automatic reinstatement as provided in rule 3-5.1(e) of the Rules Regulating The Florida Bar. We have jurisdiction. Art. V, Sec. 15, Fla. Const.

After a hearing, the referee made the following findings of fact. Respondent represented a Dutch consortium, Pelycado Onroerend Goed B.V., that owned vacation rental properties in Hernando County. Respondent was not only the consortium's legal counsel, but he also maintained a power of attorney with the right to negotiate and enter into lease agreements for these properties.

Shortly after the consortium purchased the Hernando County property, Castle Pools filed a mechanic's lien against one of the properties. Respondent, representing the consortium, sent Castle Pools a letter advising it that the lien was invalid. Nevertheless, eight months later, Castle Pools commenced a foreclosure action on the lien. Neither respondent nor the consortium had notice of this action because Castle Pools used section 48.181, Florida Statutes (1991), or the "long arm statute" to effect service of process. The court subsequently entered summary judgment in favor of Castle Pools. The property was then auctioned at a judicial sale on March 19, 1992, and a certificate of title was issued eleven days later.

Inadvertently, on March 31, 1992, respondent became aware of the foreclosure proceedings. He then notified the consortium, which instructed respondent to represent it. On April 1, 1992, respondent filed motion to quash service of process, motion to set aside foreclosure sale, and motion to deny purchase or possession. On the same day, the court, on its own motion, entered a stay of the proceedings. After several motions and pleadings were filed and a failed attempt at mediation, the court, on July 13, 1992, denied the consortium's motions. ¹ On July 15, 1994, the court issued a writ of possession.

By July 15, respondent was aware of the court's order denying the motions. With the consortium's authorization, respondent retained appellate counsel to prosecute an appeal of the order of July 13. It was in discussions with appellate counsel that respondent became aware of Florida Rule of Civil Procedure 1.580(b). ² In order to receive the protections from the rule, respondent procured a tenant for the property through an oral agreement. The referee found that despite respondent's attempts to shift the responsibility to appellate counsel for the decision to produce a tenant, the decision was respondent's alone. The tenant completed an affidavit averring that the tenant was entitled to possession of the property. Charnock's secretary, relying on Charnock's identification of the tenant, notarized the affidavit. The tenant, however, never took actual possession of the property.

The referee found that the agreement between Charnock and the tenant complied with the requirements of rule 1.580(b); that respondent and the tenant had a valid oral contract; and that even though he was not in actual possession, the tenant was in constructive possession of the property. Consequently, the tenant had rights in the property. Further, the referee found that while the identification process was less than ideal, there was no ethical violation surrounding the affidavit.

However, the referee found that Charnock acted unethically in procuring a tenant, entering into the lease, and directing and securing the affidavit of the tenant for the purpose of utilizing rule 1.580 to delay the transfer of actual possession pursuant to the writ of possession. Respondent's creation of a tenant relationship had no substantial purpose other than to embarrass, delay, or burden a third person. The referee found respondent's conduct was both deceitful and prejudicial to the administration of justice. Additionally, by testifying untruthfully that another attorney advised him to procure a tenant in an attempt to shift the blame for his conduct away from himself, respondent acted unethically.

The referee concluded that Charnock had violated the following Rules Regulating The Florida Bar: 3-4.3 (standards of professional conduct); 4-4.4 (engaging in conduct with no substantial purpose other than to embarrass, delay, or burden a third person); 4.8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (engaging in conduct prejudicial to the administration of justice). ³ The referee considered Charnock's prior disciplinary record, which included one prior admonishment for minor misconduct and his age, twenty-nine years old, and recommended that he be suspended from the practice of law for ninety days with automatic reinstatement at the end of the period. See R.Regulating Fla.Bar 3-5.1(e). The referee also assessed costs against Charnock in the amount of $1,521.37. Charnock petitions for review of the findings and recommendations of guilt and of the recommendation of discipline. ⁴

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. Florida Bar v. Rue, 643 So.2d 1080 (Fla.1994). If the referee's findings are supported by competent, substantial evidence, then this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. Florida Bar v. MacMillan, 600 So.2d 457, 459 (Fla.1992). 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. Miele, 605 So.2d 866, 868 (Fla.1992).

Based upon our review of the record, we find that it supports the referee's findings of fact and recommendations of guilt and that Charnock has not met this burden. We agree with the referee that Charnock's actions were a fraud on the court in an effort to frustrate the transfer of possession of the property. Instead of following the appropriate appellate procedures, Charnock tried to protect his client by using a rule of civil procedure to delay the transfer of possession. We find that Charnock's actions went beyond the boundaries of zealous advocacy of the Rules Regulating The Florida Bar and inhibited the proper administration of justice.

Additionally, the record supports the referee's finding that Charnock acted unethically by testifying untruthfully. In attorney disciplinary proceedings, the referee is in a unique position to assess the demeanor and credibility of the lawyer being disciplined. See Florida Bar v. Rood, 622 So.2d 974 (Fla.1993). At the hearing, Charnock testified that it was upon the direct advice of appellate counsel that he put someone in possession of the property. This is in direct conflict with the affidavit testimony from appellate counsel, who stated that she never advised Charnock to seek out tenants to gain the protection of rule 1.580. When later confronted with this affidavit, Charnock contradicted his former testimony and stated that appellate counsel only introduced him to rule 1.580, and he decided on his own to complete the affidavit and put a tenant in the property. Given his conflicting testimony, we find that the referee did not abuse his discretion by finding that Charnock was untruthful in his testimony. Accordingly, we approve the referee's recommendation of guilt concerning these violations.

Based on his findings, the referee recommended that Charnock be suspended from the practice of law for ninety days. While the Bar does not challenge this sanction, Charnock argues that a commensurate penalty for his actions would be a public reprimand. In reviewing the referee's recommendation for discipline, our scope of review is somewhat broader than our review of the factual findings because the Supreme Court ultimately has the responsibility to order an appropriate sanction. Florida Bar v. Lawless, 640 So.2d 1098 (Fla.1994). The sanction resulting from a Bar disciplinary action must serve three purposes: the judgment must be fair to society; it must be fair to the attorney; and it must be severe enough to deter other attorneys from similar misconduct. Id.

We agree with the referee that the gravity of Charnock's actions warrants a suspension. However, while Charnock is guilty of serious misconduct, in light of the involved circumstances of the lien foreclosure, testimony from several witnesses that he has a good reputation in the legal community, and respondent's past grievance record, we believe that a thirty-day suspension is an appropriate sanction to further the purposes of a disciplinary action. See Florida Bar v. Burkich-Burrell, 659 So.2d 1082 (Fla.1995) (attorney who sought to blame non-lawyer and refused to acknowledge responsibility for false information in interrogatories given thirty-day suspension in light of the unique facts of...