The Florida Bar v. Varner
| Decision Date | 25 September 2008 |
| Docket Number | No. SC06-1919.,SC06-1919. |
| Citation | 992 So.2d 224 |
| Parties | THE FLORIDA BAR, Complainant, v. Dewey Homer VARNER, Jr., Respondent. |
| Court | Florida Supreme Court |
Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, Florida, and Lorraine Christine Hoffmann, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
Kevin P. Tynan of Richardson and Tynan, PLC, Tamarac, FL, for Respondent.
We review a referee's report recommending that Respondent, Dewey Homer Varner, Jr., be found guilty of professional misconduct and be suspended from the practice of law for ninety-one days. 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 recommended discipline. The serious and cumulative nature of Varner's misconduct warrants a one-year suspension.
The Florida Bar filed a three-count complaint against Varner alleging numerous violations of the Rules Regulating the Florida Bar. Following a formal hearing, the referee filed a report containing the following findings:
Varner has been a member of The Florida Bar since October 25, 1974. In The Florida Bar File No.1987-26,200, Varner received a private reprimand for advertising violations. In Florida Bar v. Varner, 780 So.2d 1 (Fla.2001), he received a ninety-day suspension for filing a fictitious notice of voluntary dismissal.
In February 2000, a client hired the law firm of Varner & Thorne, P.A. to represent him in connection with two workers compensation accidents. Initially, Patricia Thorne, Varner's law partner, took primary responsibility for the client's files, but in November 2000 transferred the files to Varner due to medical issues. Varner never informed the client that his cases were no longer being handled by Thorne.
In August 2003, opposing counsel had scheduled and noticed a physician's deposition. Upon receiving the notice, Varner telephoned opposing counsel and requested that the deposition be cancelled. Opposing counsel stated that she would agree to cancel the physician's deposition if Varner voluntarily dismissed the case. Varner filed a notice of voluntary dismissal of one of the client's claims. Varner directed a copy of the notice of voluntary dismissal to be faxed to opposing counsel.
The notice of voluntary dismissal stated that the client, through his legal counsel, sought the voluntary dismissal of all pending claims in his workers compensation case. Varner intended to communicate that the client was aware of and consented to the dismissal of this case. Varner knew, however, that the client did not know of it and had not authorized it.
Before the referee, Varner falsely testified that Thorne expressly communicated the client's authorization to file the notice of voluntary dismissal. This was untrue, as Thorne did not communicate the client's permission to file the voluntary dismissal to Varner at any time. In fact, Thorne did not receive the client's authorization and did not know of the filing of the notice of voluntary dismissal until she received a letter from the client nearly a year later telling her so.
The motion to voluntarily dismiss the client's case was granted, and opposing counsel cancelled the scheduled deposition.
Varner never told the client that the notice of voluntary dismissal had been filed or that his case had been dismissed. After Varner had voluntarily dismissed the case, the client called the firm several times inquiring about his case. Varner failed to respond. It was not until June 2004— when a sympathetic member of Varner's law firm support staff surreptitiously revealed it to the client—that the client learned that his case had been dismissed. The client then called the court himself and officially learned of the dismissal.
Neither Varner nor anyone else from his law firm had ever informed the client that the law firm of Varner & Thorne had stopped representing him. Neither Varner nor anyone else from his law firm ever returned the client's file or took any steps to protect his interests after his case was dismissed. Moreover, before filing the motion to dismiss, Varner never considered or reviewed the applicable statute of limitations and therefore did not know that, absent extraordinary remedies, the voluntary dismissal would deprive the client of his cause of action. After discovering that his case had been voluntarily dismissed, the client had significant difficulty in reopening his case, as the statute of limitations had run.
The referee recommended that Varner be found guilty of violating several Rules Regulating the Florida Bar: 3-4.2 (violation of the Rules of Professional Conduct is a cause for discipline); 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline); 4-1.1 (a lawyer shall provide competent representation to a client); 4-1.2(a) (); 4-1.4(b) (); 4-1.16(d) (); 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); 4-8.4(a) (); 4-8.4(c) (); and 4-8.4(d) ().
The referee found the following aggravating factors: (1) prior disciplinary offenses; (2) dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple offenses; and (5) substantial experience in the practice of law. The referee also found mitigating factors of (1) personal or emotional problems and (2) character or reputation.
As to discipline, the referee recommends a ninety-one-day suspension. Further, the referee awarded costs to the Bar in the amount of $8,074.94.
Varner seeks review of the recommendations as to both guilt and the recommended discipline.
Varner appeals several of the referee's factual findings as well as the recommended discipline. We first address the factual findings and then discuss the appropriate discipline.
Varner primarily argues that the referee's findings that Varner failed to abide by the client's decisions and that he engaged in dishonesty, fraud, deceit, or misrepresentation are not supported by competent, substantial evidence. That is, Varner challenges the referee's findings that Thorne had little control over the client's case and that no conversation occurred between Varner and Thorne about the client's consent to file a notice of voluntary dismissal. Varner argues that he relied on Thorne's assertions that the client consented to the voluntary dismissal.
This Court's review of a referee's factual findings is limited to determining whether they are supported by competent, substantial evidence. This Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998). A respondent contesting factual findings cannot simply point to contradictory evidence when competent, substantial evidence supports the findings. Fla. Bar v. Committe, 916 So.2d 741 (Fla. 2005); Fla. Bar v. Nowacki, 697 So.2d 828, 832 (Fla.1997).
Varner primarily argues that evidence contradicts the referee's findings and that he relied on Thorne's alleged assertions. The referee, however, who observed Varner's demeanor, found incredible Varner's testimony that he relied on Thorne's assertions and found that Varner filed the notice of voluntary dismissal even though he knew that the client had not authorized it. The referee's decision to discount Varner's testimony is supported by competent, substantial evidence in that: (1) all witnesses, including Varner, testified to Thorne's compromised mental health and general inability to function as a lawyer during the period in question; (2) opposing counsel testified that Varner and his associates handled the client's case because Thorne had "mental difficulties"; and (3) successor counsel testified that the client told him that Varner had been handling his case because Thorne "had been away." Further, although there was evidence that the client communicated with Thorne in August 2003, there is no evidence that this communication was related to the voluntary dismissal; in fact, Thorne testified she was attempting to reconnect with her clients because Varner had stopped referring new clients to her and was attempting to redirect her existing files to other attorneys.1
In addition, opposing counsel testified that: (1) in the same telephone conversation in which Varner sought to continue a deposition and trial, he told opposing counsel that he would take a voluntary dismissal; and (2) opposing counsel was soon thereafter faxed a notice of...
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