The Florida Bar v. Diaz-Silveira, DIAZ-SILVEIR
| Decision Date | 18 January 1990 |
| Docket Number | No. 72653,DIAZ-SILVEIR,R,72653 |
| Citation | 557 So.2d 570 |
| Parties | 15 Fla. L. Weekly S35 THE FLORIDA BAR, Complainant, v. Frankespondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Kevin Tynan and Randi Klayman Lazarus, Bar Counsel, Miami, for complainant.
Douglas L. Williams of Ferrell, Williams, P.A., Miami, for respondent.
This disciplinary proceeding is before us on complaint of The Florida Bar. The Florida Bar and the respondent, Frank Diaz-Silveira, have petitioned this Court to review the referee's report in which the referee recommended that the respondent be suspended for three years for various violations of the Rules Regulating The Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const.
In 1985, the respondent was given a public reprimand and placed on probation for misconduct resulting from trust accounting irregularities. The Florida Bar v. Diaz-Silveira, 477 So.2d 562 (Fla.1985). On June 30, 1988, The Florida Bar filed an eleven-count complaint against the respondent alleging the violations under review in the instant case. 1 The referee recommended that the respondent be found guilty of violating rule 4-8.4(a) of the Rules of Professional Conduct on count I and of violating rule 4-8.4(c) of the Rules of Professional Conduct and rule 5-1.1 of the Rules Regulating Trust Accounts on counts I through X. 2 Neither the Bar nor the respondent questions that recommendation on review and, therefore, we find the respondent guilty on those counts.
Count XI, which contained the most serious allegations of the complaint, read as follows:
57. As a direct result of Counts I through X, The Florida Bar launched a complete audit of the Respondent's Law Office Account and trust accounts.
58. The bank accounts examined were the following:
a) [the general client trust account]
b) [the special trust account]
c) [the law office account]
59. The auditor's examination of Mr. Diaz-Silveira's [general client trust account] revealed that during the period examined ten (10) checks issued from the trust account were dishonored by the bank due to insufficient funds. In addition the trust account was overdrawn a total of twenty (20) times.
60. The auditor's examination of Mr. Diaz-Silveira's [special trust account] revealed that during the period examined fifty (50) checks issued from the trust account were dishonored by the Bank due to insufficient funds. The trust account was overdrawn twenty-three (23) times.
61. The auditor's examination of Mr. Diaz-Silveira's [law office account] revealed that during the period examined two hundred and forty-five (245) checks issued from the account were returned due to insufficient funds. The account was overdrawn one hundred and fifteen (115) times.
62. The Respondent consistently failed to preserve the integrity of entrusted funds, commingling same with personal and operating account monies. Client's funds were deposited in the operating account and used to satisfy what appears to be personal and business obligations. When additional client's funds were received Respondent would use those funds to pay obligations previously incurred.
63. The Respondent on at least two (2) occasions received client's funds, used those funds for unrelated matters, and when he finally paid his clients the check was dishonored due to insufficient funds.
64. During the month of December of 1987, Mr. Diaz-Silveira deposited a total of $30,000.00 of personal funds in the trust account to cover shortages.
65. During 1987, Mr. Diaz-Silveira issued eleven (11) checks from his regular operating account to his trust accounts which were dishonored due to insufficient funds. In every instance Mr. Silveira's regular bank balance was not sufficient to cover the worthless checks and on five (5) occasions the account was overdrawn.
66. The worthless checks which Mr. Diaz-Silveira deposited into his trust account increased his balance for a few days, from the date of the deposit to the date they were dishonored, in an apparent attempt to cover outstanding checks issued from the trust account. This procedure is characterized in the financial circles as Check Kiting.
In his answer the respondent admitted to allegations # 57-61, # 64, and the first sentence of # 65, but denied any violations of the Bar's disciplinary rules. The referee found the facts alleged to be true and recommended that respondent be found guilty of violating rules 4-8.4(a) and (c) of the Rules of Professional Conduct and rule 5-1.1 of the Rules Regulating Trust Accounts. After considering the nature of these violations, the respondent's prior disciplinary matter, evidence of the respondent's good character, and comparable disciplinary cases, the referee recommended that the respondent be suspended for three years.
In his brief to this Court, the respondent argues that there was no substantial and competent evidence that he knowingly and intentionally violated any of the trust accounting rules and, therefore, the finding of guilt on count XI is inappropriate. He also argues that a three-year suspension is disproportionately harsh discipline. In turn, The Florida Bar argues that the appropriate discipline is disbarment.
First, we hold that the referee's findings as to the over 300 bounced checks, commingling of funds, and check kiting are supported by substantial and competent evidence on the record. The referee himself summarized the evidence supporting his finding of the respondent's intent and knowledge as follows:
First, the Bar auditor testified in detail to evidence of "check kiting". It is my perception that the act of issuing insufficient checks from one account to another to create a false balance for a brief period of time at the end of each month, over and over again, cannot be accepted as an unintentional act. Second, Respondent was give a public reprimand and placed on probation in 1985 for similar misconduct. It is hard to fathom why someone who in essence was given "one free bite" could be so utterly unaware.
... Moreover, the Bar brought out testimony during the cross-examination of the Respondent establishing that he was aware for some period of time that checks were bouncing. Notwithstanding this knowledge, Respondent...
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