The Florida Bar v. Heptner, No. SC01-1298

• Decision Date: 15 September 2004
• Docket Number: No. SC01-1298, No. SC02-1118.
• Citation: 887 So.2d 1036
• Parties: THE FLORIDA BAR, Complainant, v. James Manuel HEPTNER, Respondent.
• Court: Florida Supreme Court

887 So.2d 1036

THE FLORIDA BAR, Complainant, v. James Manuel HEPTNER, Respondent.

Nos. SC01-1298, SC02-1118.

Supreme Court of Florida.

September 15, 2004.

Rehearing Denied November 15, 2004.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL, and William Lance Thompson, Assistant Staff Counsel, Tampa, FL, for Complainant.

Scott K. Tozian of Smith and Tozian, P.A., Tampa, FL, for Respondent.

PER CURIAM.

We have for review a referee's report recommending that James Manuel Heptner be found guilty of professional misconduct and suspended from the practice of law for two years, effective, nunc pro tunc, July 3, 2002. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendations as to guilt. However, for the reasons that follow, we disapprove the referee's recommended discipline and hereby disbar Heptner from the practice of law in Florida, effective, nunc pro tunc, July 3, 2002.

FACTS

By order of this Court dated March 29, 2001, Heptner was suspended from the practice of law for sixty days, effective April 30, 2001. See Florida Bar v. Heptner, 789 So.2d 350 (Fla.2001) (table report of unpublished order). In June 2001, the Bar filed a petition asking this Court to order Heptner to show cause why he should not be held in contempt and suspended from the practice of law, or disbarred, for practicing law while under an order of suspension. In October 2001, the Bar filed an amendment to the petition for order to show cause to include information not known at the time the initial petition was filed.¹ In May 2002, The Florida Bar filed a five-count complaint against Heptner. The referee consolidated the Bar's petition for order to show cause and the Bar's complaint. After holding hearings, the referee issued a report that adopted the facts as set forth in specified record documents. Those facts and the referee's recommendations are as follows.

Count I. Heptner, a member of The Florida Bar, was hired by a client to represent her in dissolution of marriage proceedings. However, Heptner failed to attend the scheduled family mediation. Shortly thereafter, the client informed Heptner by letter that she was dissatisfied with his representation and requested that he refund his fee. Heptner responded by meeting with her and discussing the mediated agreement. Thereafter, Heptner attended the final hearing, which resulted in a final judgment that was satisfactory to the client.

After the final dissolution of marriage was entered in March 1997, the client noticed that her requested name change was not in the original paperwork. Heptner told her that he would immediately file a motion to remedy this problem. However, despite the client's several communications with Heptner about completing the name change, he failed to file the necessary petition until October 1997. Heptner then failed to adequately prepare her for the subsequent hearing. Because the client was unable to answer the judge's questions, she was not able to receive her name change until December 1997.

In March 1998, the client filed a complaint against Heptner. The Bar sent Heptner an inquiry letter on March 19, 1998, regarding the complaint. In the letter, the Bar advised Heptner that a response was required within fifteen days pursuant to rule 4-8.4(g) of the Rules Regulating the Florida Bar. Heptner failed to answer the Bar's letter at that time. On April 15, 1998, the Bar sent Heptner a second letter, which also required a response within fifteen days. Heptner did not respond to the Bar's letters until August 1998, and also failed to respond to a letter from the grievance committee.

Count II. In March 2000, the Bar received a complaint from another client.² Heptner failed to respond to two letters from the Bar asking him to respond to the client's complaint within fifteen days. Heptner also failed to provide requested information to the grievance committee investigating member.

Count III. Heptner represented another client in a personal injury claim arising out of an automobile accident. On July 30, 1999, the claim was settled with the defendant's insurance company, Safeco, for $9000. On August 2, 1999, the claims adjuster for Safeco mailed a $9000 settlement check to Heptner, enclosing a release and indemnity agreement to be signed by the client and returned to Safeco. Safeco made the client's signing of the release a condition of the client's receipt of the settlement funds. Heptner endorsed the settlement check and disbursed the client's portion of the settlement funds to the client, but Heptner failed to provide Safeco with the signed release. Representatives of Safeco made numerous attempts to contact Heptner, by telephone and by correspondence, to obtain the executed release. Heptner failed to respond, and he never provided Safeco with a release signed by his client. In March 2001, Safeco filed a grievance against Heptner. Heptner failed to respond to two letters from the Bar requesting his response to Safeco's complaint within fifteen days. Heptner did not respond to the Bar until June 2001. Count IV. The Bar received a complaint from yet another client against Heptner.³ On May 30, 2001, the Bar sent Heptner a letter asking him to respond to the client's complaint within fifteen days. Heptner did not respond until around June 26, 2001.

Count V of the Complaint, the Petition for Order to Show Cause, and the Amendment to the Petition for Order to Show Cause. Heptner has been prohibited from practicing law in Florida since October 31, 2000, because he failed to comply with continuing legal education requirements. Further, Heptner was suspended by this Court in Florida Bar v. Heptner, 789 So.2d 350 (Fla.2001), for sixty days, effective April 30, 2001.

On April 12, 2001, the Bar sent Heptner a letter informing him that, pursuant to rule 3-5.1(g) of the Rules Regulating the Florida Bar, he was required to submit an affidavit verifying that he had furnished a copy of the suspension order to his active clients, to opposing counsel, and to all courts before which he was counsel of record, within thirty days of receipt of the order. Heptner was also informed that he was required to "eliminate the appearance of being a lawyer in good standing," which included removal of his office signs. Heptner failed to submit the affidavit required by rule 3-5.1(g) within thirty days. In fact, Heptner did not respond to the Bar's letter until after the Bar petitioned this Court on June 13, 2001, for an order compelling Heptner to show cause why he should not be disbarred. Heptner finally responded to the Bar on June 28, 2001, and submitted the affidavit required by rule 3-5.1(g), which stated that he had furnished a copy of the suspension order to all clients and included a list of their names and addresses. However, the list did not include the names of at least two clients.

Despite the Bar's April 2001 letter, Heptner continued to represent a client in a dissolution of marriage case. On May 14, 2001, Heptner was scheduled to appear for a circuit court case management conference for the client. Because neither Heptner nor his client appeared for the conference, the court dismissed the case. On May 15, 2001, Heptner appeared in the judge's chambers and stated that he had mistakenly thought the conference was scheduled for May 15. The judge said he would consider a motion for rehearing. Heptner did not mention to the judge or the judicial assistant that he was suspended. Further, Heptner contacted the client on May 15 and advised him that the court hearing was rescheduled for August 2001.

On May 24, 2001, Heptner again appeared in the judge's chambers and filed an "Emergency Motion for Rehearing or to Reinstate Case" and a "Notice of Rehearing." Although the motion and notice were signed by Mr. Treuhaft, an attorney who shared office space with Heptner, the documents included Heptner's name and bar number. At that point, the judge recalled seeing Heptner's name on a list of suspended attorneys.

The court, on its own motion, entered an order to vacate or set aside the order of dismissal. Among other things, the order stated that (1) Heptner informed the judicial assistant that he represented the client; and (2) the client called the judicial assistant and informed her that Heptner had told him that Heptner had appeared before the judge on May 14 and had the case management conference rescheduled. Thus, the record indicates that Heptner did not inform the client that he was suspended until after the client learned that the case had been dismissed. Heptner then told the client that he had filed a motion to reinstate the case and that the client should seek new counsel. By adopting the facts in the record, the referee found that Heptner engaged in the practice of law during his suspension by (1) continuing to represent the client; (2) filing a motion and notice of rehearing; (3) misrepresenting to the client that he appeared at the case management conference on May 14, 2001; and (4) implying that he could continue to represent the client through the final hearing scheduled for August 2001.

Next, through an undercover narcotics trafficking investigation and telephone wiretap, Heptner had been recorded soliciting the delivery of cocaine from another client in two phone conversations. The conversations took place in May 2001, while Heptner was suspended. Further, Heptner had purchased cocaine from the client on a regular basis over an eighteen-month period and, at Heptner's suggestion, the client had also provided Heptner with cocaine in exchange for legal services. During Heptner's suspension from the practice of law, he continued to provide legal advice to the client regarding his dissolution of marriage case.

On July 18, 2001, the client wore an audio recording device during a meeting in Heptner's office. During that meeting, Heptner again solicited the delivery of...