The Florida Bar v. Rood, 80392
| Decision Date | 20 January 1994 |
| Docket Number | No. 80392,80392 |
| Citation | 633 So.2d 7 |
| Parties | 19 Fla. L. Weekly S51 THE FLORIDA BAR, Complainant, v. Edward B. ROOD, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, Tallahassee, Joseph A. Corsmeier and Bonnie L. Mahon, Asst. Staff Counsels, Tampa, for complainant.
E.B. Rood, pro se.
Edward B. Rood petitions for review of a referee's report recommending that he be disbarred. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution. We hereby suspend Rood from the practice of law for one year to run consecutive to his current two-year suspension.
Count one involves the Bar's allegations that Rood failed to put a fee agreement in writing and failed to give his clients a proper closing statement. In April 1981, Mr. Hillery Thrower and Mr. Aaron Long consulted Rood about a medical malpractice claim on behalf of Thrower's natural daughter and Long's stepdaughter, Sheila Thrower. Mrs. Cora Long, Sheila's natural mother, did not attend the initial office consultation. Rood advised Thrower and Long that if a viable malpractice case existed, he would enter into a contingency fee agreement in which he would receive thirty-three and one-third percent of any recovery without suit, forty percent after a suit was filed, and fifty percent if an appeal were taken. Rood's paralegal testified that Thrower and Long signed a fee agreement and that the agreement was placed in the file. The clients, however, testified that they did not sign a fee agreement. Although the agreement could not be produced for the referee's or this Court's inspection, it is undisputed that neither Rood nor the attorney to whom Rood ultimately assigned the case, David Webster, ever signed the agreement. 1
In October 1984, the jury returned a verdict of $1,286,000 for the medical malpractice action on behalf of Sheila Thrower. Shortly thereafter, the defendants in the medical malpractice action filed a motion for new trial. Webster retained Bruce Walkley, an appellate attorney, to assist the firm with research related to the case. The court awarded Thrower and Long an attorney's fee of $255,000, which included a $5,000 attorney's fee for Walkley.
In December 1984, the defendants in the medical malpractice action filed a notice of appeal and subsequently, Rood took the case over from Webster. 2 The case settled in April 1985 for $1,350,000. Rood's rationale for accepting the settlement amount was his belief that the $255,000 attorney's fee award would probably not be held valid. Therefore, he agreed to settle the case for $1,250,000, plus an additional $120,000 that he calculated for eight months interest on the $1,250,000 verdict amount. 3 Mr. Thrower's closing statement was not signed by Rood or by the client. The statement also included $13,234.32 in costs that were not itemized and that Thrower had not agreed to pay. Similarly, neither Mrs. Long's closing statement nor the estate's statement was signed by Rood or any attorney in his firm.
Mrs. Long and Mr. Thrower sued Rood, seeking the return of an additional ten percent fee that Rood charged for the appeal of the medical malpractice case. The clients believed that they should not be charged for work on an appeal that was not pursued. The jury awarded Mrs. Long a judgment against Rood for $79,515, plus prejudgment interest. Mr. Thrower was awarded a judgment against Rood for $54,945, plus prejudgment interest. The Second District Court of Appeal affirmed the jury verdict and denied Rood's motion for rehearing.
The referee found that Rood's failure to put the fee agreement in writing in the medical malpractice case was due to Webster's negligence. Thus, the referee recommends that Rood be found not guilty of violating the rule of professional conduct that requires fee agreements to be in writing. 4 The referee found that Rood was responsible for the medical malpractice case from December 21, 1984, the date the appeal was filed, until the case was closed. In addition, the referee found clear and convincing evidence that Rood failed to provide his clients with a proper closing statement, including a breakdown of costs, and that he was not authorized to charge Mr. Thrower the total amount of the costs. Therefore, the referee recommends that Rood be found guilty of violating rule 4-1.5 of the Rules Regulating...
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