The Florida Bar v. Seldin, 69956

• Decision Date: 12 May 1988
• Docket Number: No. 69956,69956
• Citation: 526 So.2d 41,13 Fla. L. Weekly 315
• Parties: 13 Fla. L. Weekly 315 THE FLORIDA BAR, Complainant/Cross-Respondent, v. Keith A. SELDIN, Respondent/Cross-Petitioner.
• Court: Florida Supreme Court

Page 41

526 So.2d 41

13 Fla. L. Weekly 315

THE FLORIDA BAR, Complainant/Cross-Respondent, v. Keith A. SELDIN, Respondent/Cross-Petitioner.

No. 69956.

Supreme Court of Florida.

May 12, 1988.

Rehearing Denied June 30, 1988.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David M. Barnovitz, Asst. Staff Counsel, Fort Lauderdale, for complainant/cross-respondent.

Barry Richard and William L. Hyde of Roberts, Baggett, LaFace & Richard, Tallahassee, and William Isenberg, Fort Lauderdale, for respondent/cross-petitioner.

PER CURIAM.

This disciplinary proceeding is before us on a complaint of the Florida Bar and the report of the referee, which the Bar contests. We have jurisdiction pursuant to article V, section 15, Florida Constitution, and approve the referee's findings as to guilt but reject the recommended discipline.

The Bar filed a five-count complaint against Keith A. Seldin, a member of the Florida Bar. After a hearing, the referee made the following findings of fact:

As to Count 1

(a) That the Respondent admits to count I of the Bar's allegations that he, while serving in 1983 as counsel for the personal representative for the estate of Stephenson, did pay a finder's fee of $10,000 to his then friend (present wife) Betty Boneparth, a real estate salesperson with broker Fidelity, from the sale proceeds of an estate owned real estate parcel. The sales contract approved and executed by Respondent provided that the seller "recognizes NONE as the broker".... Respondent further admitted to advising the personal representative so as to avoid any possible broker's commission to a broker, Town & Country, with whom decedent had listed the said parcel for sale to pay the said finder's fee in a lesser amount to Boneparth.

(b) Respondent through his counsel "basically stated" ... that Respondent "saw to it a commission or compensation was paid directly to a non-broker. Thus, cutting

out either one or two brokers of the commission they were legally entitled to receive and that constitutes a violation of the Florida Criminal Statutes" and which he admits to being "a serious charge"....

As to Count 2

(c) The Bar alleges in Count 2 that Boneparth played no part in procuring the purchaser for sale of the Stephenson estate property which was known by Respondent when he made the aforementioned $10,000 finder's fee to Boneparth....

....

(e) The testimony was clear and convincing that Boneparth played no part in procuring the purchaser or in any way involved [sic] that would justify a real estate commission or finder's fee of $10,000. Boneparth's participation was merely to show to the purchaser the aforementioned real estate parcel at the request of Respondent who was approached by the purchaser for a showing of the property.

As to Count 3

(f) Respondent as a notary public admits his guilt as to Count 3 by taking the acknowledgment of the signature of the personal representative, Kathy Mills, of the Stephenson estate outside her presence, on two conveyance deeds of different dates. Such conduct alleges a violation of F.S. 117.09(1)....

As to Count 4

(g) The Bar alleges and Respondent admits a violation of Disciplinary Rule 5-105(B) of the Code of Professional Responsibility which provides that a lawyer shall not continue multiple employment where a client will or is likely to be adversely affected.

(h) The conduct herein involved related to Respondent requesting and obtaining from the Stephenson estate personal representative $3621.35 for the purpose of paying an estate indebtedness allegedly owing to Setterfield, a pending matrimonial client of respondent. Setterfield never did receive said money. At the time of said request Setterfield had not filed any claim against the estate and respondent had not fully disclosed to the personal representative the effect of his representation of both Setterfield and the Stephenson estate.

As to Count 5

(i) The thrust of the Bar's complaint is that the Respondent furthered his own financial and/or personal interests by making the aforementioned $10,000 payment to Boneparth at a time when they were married in violation of Disciplinary Rule 5-101(A) of the Code of Professional Responsibility.

(j) Respondent testified with respect to the $10,000 payment "certainly it was given to her but I did get the benefits because we were married"....

(k) Respondent by way of explanation to Count 5 asserts a factual dispute as to whether Boneparth played a part in procuring the purchaser of the subject real estate. As previously determined in paragraph (e) Boneparth's participation does not justify Respondent's actions.

The referee made the following findings as to the respondent's guilt under the Integration Rule and Code of Professional Responsibility on each of the five counts:

Count 1--Guilty of violating Florida Bar Integration Rule, article XI, rule 11.02(3) (conduct contrary to honesty, justice or good morals); DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation); DR 7-102(A)(7) (counseling or assisting a client in illegal or fraudulent conduct); DR 7-102(A)(8) (engaging in illegal conduct or conduct contrary to a disciplinary rule).

Count 2--Guilty of violating Florida Bar Integration Rule, article XI, rule 11.02(3) (conduct contrary to honesty, justice or good morals); DR 1-102(A)(4) (conduct involving dishonesty, deceit, fraud or misrepresentation).

Count 3--Guilty of violating Florida Bar Integration Rule, article XI, rule 11.02(3) Count 4--Guilty of violating DR 5-105(B) (continuing multiple employment when the exercise of the lawyer's independent professional judgment is likely to be adversely affected).

(conduct contrary to honesty, justice or good morals); DR 7-102(A)(8) (engaging in illegal conduct).

Count 5--Guilty of violating DR 5-101(A) (employment, without client's consent, when the attorney's professional judgment will be affected by his own financial or personal interests).

The referee recommended that Seldin be suspended for one year with proof of rehabilitation and reinstatement conditioned upon Seldin's paying the costs of the disciplinary proceeding, making restitution to the Stephenson estate and attaining a passing score on the ethics portion of the Florida Bar exam. The Bar argues that the appropriate discipline is disbarment. Seldin filed a cross-petition and alleged that the referee erred in finding him guilty on counts 2 and 5 since those allegations were not supported by competent substantial evidence. Seldin argues that, consequently, a one-year suspension is too harsh. We will address Seldin's cross-petition first.

GUILT

As to counts 2 and 5, Seldin argues that the evidence was not clear and convincing that Betty Boneparth did not procure the purchaser for the property owned by the Stephenson estate. Seldin alleges that the testimony of the purchaser, Thomas Lee, was vague and contradictory while Boneparth's and Seldin's testimony was unequivocal that Boneparth did indeed procure the purchaser for the property. From a review of Thomas Lee's testimony, it is clear that he found out that the property was for sale on his own, and then approached Seldin about purchasing it. Seldin then arranged for Betty Boneparth to meet Mr. Lee at the building to let him see the place. Lee testified that Boneparth spent approximately ten to fifteen minutes with him at the building in question. Furthermore, the contract for sale and purchase contained the following clause: "COMMISSION TO BROKER: The seller hereby recognizes NONE as the broker in this transaction...." When asked about why the contract was prepared this way, Mr. Lee responded: "I think my secretary prepared this contract. I had dealt with Mr. Seldin and there was no broker involved and I didn't want anybody claiming a commission against me either." A special referee's findings of fact are presumed correct and will be upheld unless clearly erroneous and lacking in evidentiary support. The Florida Bar v. Neely, 502 So.2d 1237 (Fla.1987); The Florida Bar v. Marks, 492 So.2d 1327 (Fla.1986). A review of the record indicates that there was substantial, competent evidence on which the referee could have found that Betty Boneparth did not procure the purchaser of the property. We therefore accept the referee's finding of guilty as to counts 2 and 5.

Seldin does not dispute the findings of guilt with respect to counts 1, 3 and 4. Count 1 arose from the same facts which encompassed counts 2 and 5 but was directed toward Seldin's efforts to exclude either one or both of the brokers from obtaining a real estate commission. In admitting guilt as to count 3, Seldin says that he acknowledged the signature of Kathy Mills outside of her presence on two occasions as a convenience to her because she was not feeling well. He also admits to the conflict of interest as alleged in count 4. He says that one of the principal assets of Stephenson's estate was a liquor lounge and that his divorce client, Setterfield, was owed money for his services in managing the lounge. Acknowledging that he should have recognized the conflict of interest, Seldin asserts that he believed that paying Setterfield was beneficial to the estate because it would keep Setterfield from seeking employment elsewhere. Seldin further points out that even though he recommended the payment to Setterfield, it was never made.

DISCIPLINE

The Bar argues that the appropriate measure of discipline is disbarment. Seldin argues that he should only receive a ninety-day suspension because he has no record of prior or subsequent misconduct and because he presented various letters of commendation from civic leaders in his community. Additionally, Seldin argues that he did not act with venality when he paid the $10,000 to Betty Boneparth; rather, he was trying to save the Stephenson estate money by paying less than what would have been due to...