The Florida Bar v. Valentine-Miller

• Decision Date: 10 January 2008
• Docket Number: No. SC06-1629.,SC06-1629.
• Citation: 974 So.2d 333
• Parties: THE FLORIDA BAR, Complainant, v. Kristine W. VALENTINE-MILLER, Respondent.
• Court: Florida Supreme Court

974 So.2d 333

THE FLORIDA BAR, Complainant, v. Kristine W. VALENTINE-MILLER, Respondent.

No. SC06-1629.

Supreme Court of Florida.

January 10, 2008.

John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Jan K. Wichrowski, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.

Barry Rigby of the Law Office of Barry Rigby, P.A., Orlando, FL, for Respondent.

PER CURIAM.

We have for review a referee's report recommending that respondent, Kristine W. Valentine-Miller, be found guilty of professional misconduct and be suspended from the practice of law for three years. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we approve the referee's findings of fact and recommendations as to guilt, but reject the referee's findings of mitigation and recommended discipline. The serious nature of respondent's misconduct, as well as the harm she caused, warrants disbarment.

FACTS

On June 19, 2006, based on the conduct at issue here, this Court suspended respondent on an emergency basis under Rule Regulating the Florida Bar 3-5.2. Fla, Bar v. Valentine-Miller, 934 So.2d 451 (Fla.2006). Subsequently, on October 3, 2006, The Florida Bar filed an amended complaint against respondent, alleging over twenty violations of the Rules Regulating the Florida Bar.¹ Respondent admitted all the allegations made by the Bar. Following a formal hearing, the referee filed a report in which he made the following findings:

Respondent was admitted to the Bar in July 1997, and worked as an assistant public defender until 1999. For the next year, she was an associate in a personal injury firm which she left at the firm's request due to her "lack of organization." Respondent then shared space for a year with a group of attorneys who eventually asked her to leave and to "get a fresh start elsewhere" due to her problems with alcohol. Respondent shared space with another attorney from January 2001 to December 2005, at which time she returned to the Public Defender's Office.

Through 2004 and 2005, respondent neglected numerous clients by failing to diligently pursue their cases; failing to adequately communicate with them; failing to adequately account to them for trust funds when received; misrepresenting the status of clients' cases; failing to return client files when she abandoned her practice; and failing to utilize record-keeping and accounting procedures required by the Rules Regulating the Florida Bar.

Respondent's poor record-keeping and maintenance of files, many of which are missing, made it impossible to determine the exact total of client funds converted. The Bar's Chief Branch Auditor conducted an audit for the period from February 25, 2004, through February 28, 2006, and he determined that the total owed clients was no less than $31,416.41 and no more than $51,291.41.

Respondent testified that she had a drinking problem as early as 2001, which affected her work performance, and that, at some point in time, she began abusing painkillers. Respondent's mother died in 2004 and shortly thereafter respondent was diagnosed with melanoma in her leg, a condition that respondent believed was terminal, which further increased respondent's reliance on alcohol and drugs. Her addictions increasingly affected her ability to represent her clients and to manage her office. Respondent checked herself into an inpatient rehabilitation facility six months after the Bar initiated the instant proceedings. Respondent demonstrated progress at the facility and started counseling new admissions.

The referee recommends that respondent be found guilty of the twenty-three rule violations charged and admitted.

The referee found the following aggravating factors: (1) pattern of misconduct; (2) multiple offenses; and (3) vulnerability of victim (specifically those clients who have not received settlement funds and who have not received files and records to enable them to find other counsel).

The referee found the following mitigating factors: (1) absence of prior disciplinary record; (2) absence of dishonest or selfish motive; (3) personal or emotional problems (those events in 2004 that contributed to substance addictions); (4) inexperience in the practice of law; (5) physical or mental impairment (the effects of her substance addictions); (6) interim rehabilitation; and (7) remorse.

The referee recommends that respondent be suspended for three years, nunc pro tunc as of June 19, 2006, the date of her emergency suspension, and thereafter suspended indefinitely until she has demonstrated rehabilitation with respect to her substance addictions, and until she has established that she has made all former clients whole. The referee recommends that, upon satisfaction of those conditions, respondent be placed on probation for three years with the condition that she not open or maintain a trust account until she has successfully completed The Florida Bar's Trust Accounting Workshop and Law Office Management Assistance Service or a similar course in office management and record-keeping procedures.

The Bar petitioned for review of the referee's recommended discipline, challenging the referees findings as to mitigation and aggravation and arguing that disbarment is the appropriate sanction.

ANALYSIS

As a preliminary matter, neither of the parties challenges the referee's findings of fact and recommendations as to guilt. Accordingly, we approve those findings and recommendations without further discussion.

The Bar challenges the referee's findings as to mitigation and aggravation. A referee's findings as to mitigation and aggravation carry a presumption of correctness and will not be disturbed unless clearly erroneous or without support in the record. Fla. Bar. v. Arcia, 848 So.2d 296 (Fla.2003).

The Bar challenges the referee's findings of interim rehabilitation, inexperience in the practice of law, and lack of a dishonest or selfish motive as mitigating factors.

The referee's finding of interim rehabilitation as a mitigating factor is supported by the record, which shows that respondent checked herself into an inpatient rehabilitation facility where she demonstrated progress. Accordingly, we approve the referee's finding as to interim rehabilitation.

However, we reject the referee's findings as mitigation that respondent was inexperienced in the practice of law and that she lacked a selfish or dishonest motive. The referee found that respondent was inexperienced in the practice of law based on his belief that respondent's one-and-a-half years as an assistant public defender handling misdemeanor cases and then her short time as an associate provided minimal experience for a solo personal injury practice. The Bar argues that respondent did not merely make errors resulting from lack of experience. She stole money and abandoned her clients, and such misconduct cannot be mitigated by lack of experience.

Contrary to the referee's finding that "her limited experience as a public defender provided minimal trust accounting-experience," respondent practiced law for five years outside the Public Defender's Office and until the beginning of the Bar's audit period. In fact, respondent testified that she was somewhat familiar with the basic rules of trust accounting from working at a previous personal injury firm.

While the Court accords deference to a referee's finding of mitigation, it is clear that the referee's finding with regard to lack of experience is not supported by the record and lack of experience did not contribute to respondent's commission of the rule violations. Thus, we reject the referee's finding of mitigation as to inexperience in the practice of law.

The referee found that respondent lacked a dishonest or selfish motive because her conversions of her clients' funds were not willful misappropriations but were, rather, the result of gross negligence due to her alcohol addiction. The Bar argues that respondent admitted engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and, therefore, she knew that her actions were wrong and that she was dipping into client funds and failing to manage her accounts properly. Respondent urges us to approve this mitigating factor arguing that, in light of her mental condition and the state of her books and records, she did not commit a knowing misappropriation.

The referee recommends that the Court find respondent guilty of violating rule 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent admitted she violated this rule. These facts cannot be reconciled with the referee's finding that respondent lacked a dishonest or selfish motive. See Fla. Bar v. Brownstein, 953 So.2d 502 (Fla.2007). Respondent intentionally misappropriated client money and, therefore, engaged in dishonest conduct. See Fla. Bar v. Riggs, 944 So.2d 167, 171 (Fla.2006) ("Knowingly or negligently engaging in sloppy bookkeeping amounts to intent under rule 4-8.4(c)."). Accordingly, we find the referee's finding that respondent lacked a dishonest or selfish motive to be unsupported by the record, and we reject it.

The Bar argues that the referee should have found as aggravating factors that respondent obstructed the disciplinary process by intentionally failing to cooperate with the Bar and failed to make restitution. We disagree with the Bar. The evidence in the record indicates that both of these factors were properly considered by the referee and rejected.

Next, the Bar challenges the referee's recommendation as to discipline. In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See. Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, 15, Fla. Const. However,...