The Florida Bar v. Barrett

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Florida Bar v. Barrett, 897 So.2d 1269 (Fla. 2005)
• Decision Date: 17 March 2005
• Docket Number: No. SC03-375.,SC03-375.
• Parties: THE FLORIDA BAR, Complainant/Cross-Respondent, v. David A. BARRETT, Respondent/Cross-Complainant.

897 So.2d 1269

THE FLORIDA BAR, Complainant/Cross-Respondent, v. David A. BARRETT, Respondent/Cross-Complainant.

No. SC03-375.

Supreme Court of Florida.

March 17, 2005.

John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, Thomas Gary, Chair, Second Judicial Circuit Grievance Committee, and James A.G. Davey, Jr., Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant/Cross-Respondent.

John A. Weiss of Weiss and Etkin, Tallahassee, FL and W.O. Birchfield of Birchfield and Humphrey, P.A., Jacksonville, FL, for Respondent/Cross-Complainant.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by attorney David A. Barrett. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendations as to guilt. For the reasons explained below, we decline to approve the recommended sanction of a one-year suspension and instead disbar Barrett.

I. FACTS

The Florida Bar filed a complaint against respondent David A. Barrett, alleging numerous counts of misconduct involving two unethical schemes to solicit clients. After a multiple-day hearing, the referee issued a report making the following findings and recommendations.

Barrett was the senior partner and managing partner in the Tallahassee law firm of Barrett, Hoffman, and Hall, P.A. In approximately January 1993, Barrett hired Chad Everett Cooper, an ordained minister, as a "paralegal." Although Cooper had previously worked for a law firm in Quincy, Florida, Cooper's primary duty at Barrett's law firm was to bring in new clients. As Cooper testified, Barrett told him to "do whatever you need to do to bring in some business" and "go out and ... get some clients." Cooper was paid a salary averaging $20,000 and, in addition to his salary, yearly "bonuses" which generally exceeded his yearly salary. In fact, Cooper testified that Barrett offered him $100,000 if he brought in a large case.

To help Cooper bring in more personal injury clients to the law firm, Barrett devised a plan so that Cooper could access the emergency areas of a hospital and thus be able to solicit patients and their families. In order to gain such access, Barrett paid for Cooper to attend a hospital chaplain's course offered by Tallahassee Memorial Hospital.

In approximately March of 1994, Molly Glass's son was critically injured when he was struck by an automobile while on his bicycle. While her son was being treated in the intensive care unit at Tallahassee Memorial Hospital, Cooper met the Glass family. Cooper, who dressed in "clothing that resembled a pastor," identified himself to the family as a chaplain and offered to pray with them. Thereafter, Cooper gave a family member of Molly Glass the business card of attorney Eric Hoffman, one of the partners in Barrett's law firm, and suggested that the family call the firm. Neither Barrett nor Cooper knew Molly Glass prior to Cooper's solicitation at the hospital. After her son died, Molly Glass retained Barrett's law firm in a wrongful death action. A settlement was negotiated, and she was pleased with the result until May of 1999, when she read a newspaper article about improper solicitation of clients and realized that Cooper's actions in the hospital constituted inappropriate solicitation. The referee specifically found that Cooper was Barrett's agent at the time that Cooper solicited Molly Glass and that Barrett ordered the conduct and ratified it by paying Cooper a salary and bonuses.

In April 1994, Cooper referred his friend, Terry Charleston, to Barrett's law firm. Charleston was an automobile accident victim whose injuries left him a quadriplegic. After the case was settled for over $3 million, Cooper was paid a bonus that year of $47,500.¹ Barrett attempted to justify the extremely large bonus, contending that the bonus was based on personal services, pastoral services, and companionship that Cooper provided to Charleston. The referee rejected this explanation, finding that Barrett lied about the reason for the bonus. Instead, the referee found that Barrett gave Cooper the bonus for bringing in the case, and thus Barrett engaged in an illegal fee-splitting plan.

On September 19, 1997, Barrett, who had the ultimate authority for hiring and firing in his law firm, fired Cooper. In the words of Barrett's now-deceased partner, Eric Hoffman, Barrett fired Cooper because "it was getting pretty hot and he was afraid that everyone would get caught."² However, even after Cooper was fired, his relationship with Barrett did not end.

While Cooper obtained accident reports and solicited patients for a chiropractor, he also continued to solicit clients for Barrett. After the patients were seen by the chiropractor, the accident reports were forwarded to Barrett's law partner, Hoffman. Cooper was paid $200 for each client who was brought into the law firm. The referee specifically found that Barrett knew about this scheme and that he ratified the conduct of Hoffman and Cooper. Barrett micromanaged the office, especially the finances, and personally signed the checks to Cooper in the amount of $200 per client for soliciting eight clients. Moreover, Barrett inquired as to whether there was insurance coverage before authorizing the firm's checks written to Cooper for soliciting clients. In addition to Molly Glass, the referee found that Barrett improperly solicited twenty-one other clients in violation of the Rules of Professional Conduct.

Finally, in May 1996, Barrett sent Cooper to Miami and Chicago in order to solicit clients as a result of the Value Jet airplane crash in the Everglades. Although Barrett denied any knowledge about this, his own business records show that $974.24 was paid for Cooper's travel expenses. The referee found that Barrett's testimony regarding this matter was not credible. While neither solicitation resulted in clients for Barrett's firm, the referee concluded these were inappropriate solicitation attempts directed by Barrett.

Based on the above factual findings, the referee found that Barrett was guilty of violating the following sections of the Rules Regulating the Florida Bar: 4-5.l(c)(1) (responsibilities of a partner); 4-5.3(b)(3)(A) (responsibilities regarding nonlawyer assistants); 4-5.4(a)(4) (sharing fees with nonlawyers); 4-7.4(a) (solicitation); 4-8.4(a) (violating or attempting to violate the rules of professional conduct); 4-8.4(c) (engaging in conduct involving deceit); and 4-8.4(d) (engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice). In turning to the recommended discipline, the referee found the following aggravating circumstances applied in this case: (1) Barrett had a dishonest or selfish motive; (2) he exhibited a pattern of misconduct; (3) he was guilty of multiple offenses; (4) he submitted false statements during the disciplinary process by lying to the referee; (5) the victim was in a vulnerable condition; and (6) Barrett had substantial experience in the practice of law. As to mitigation, the referee found that four mitigating circumstances applied here: (1) Barrett did not have a prior disciplinary record; (2) he made full and free disclosure to the disciplinary board or had a cooperative attitude toward the proceedings; (3) character witnesses testified to Barrett's good character and reputation; and (4) Barrett exhibited remorse as to the effect of his conduct upon his family, friends, and clients. After considering the foregoing aggravating and mitigating factors, the referee recommended that Barrett be suspended from the practice of law for one year and be ordered to pay the Bar's costs.

The Florida Bar appeals to this Court, contending that we should increase the discipline to disbarment. Respondent cross-appeals and challenges whether (1) the referee made independent findings of fact; (2) the referee improperly denied several preliminary motions; (3) there is sufficient proof to support the referee's findings of fact; and (4) the sentence is excessive in light of our previous Bar discipline decisions. Since Barrett challenges both the findings of fact and the recommended discipline, we address the cross-appeal first.

II. ANALYSIS

Sufficiency of the Referee's Report

In his first claim, Barrett requests that this Court disregard the referee's findings of fact because the referee adopted verbatim the Bar's proposed findings of fact without first making any prior pronouncements on the factual issues before him, and thus, the referee's findings do not reflect the judge's independent decision-making. In support of his contentions, Barrett alleges that Florida courts have condemned trial judges for blindly adopting orders submitted by one party without first making factual findings on the record. See Perlow v. Berg-Perlow, 875 So.2d 383, 388 n. 4 (Fla.2004); Rykiel v. Rykiel, 795 So.2d 90, 92 (Fla. 5th DCA 2000), quashed on other grounds, 838 So.2d 508 (Fla.2003); Waldman v. Waldman, 520 So.2d 87, 89 (Fla. 3d DCA 1988), receded from on other grounds by Acker v. Acker, 821 So.2d 1088 (Fla. 3d DCA 2002), review granted, 842 So.2d 842 (Fla.2003).

The record does not support Barrett's contentions that the referee failed to make his findings on the record before adopting the proposed report. The record shows that after defense counsel requested that the referee make specific findings of fact prior to the next hearing, the referee informed both parties that he found that Barrett knew about and participated in the solicitation schemes, that Barrett was also vicariously responsible, and that the referee's subsequent report would find that the Bar had sufficiently proved all of the allegations contained in its complaint. The Bar submitted the proposed findings of fact, which contained statements similar to those contained in its initial complaint.

This Court has already rejected Barrett's argument in Florida Bar v. Cramer, 678...