The Florida Bar v. Witt, 80471

• Decision Date: 18 November 1993
• Docket Number: No. 80471,80471
• Parties: 18 Fla. L. Weekly S609 THE FLORIDA BAR, Complainant, v. Stephen M. WITT, Respondent.
• Court: Florida Supreme Court

Page 1358

626 So.2d 1358

18 Fla. L. Weekly S609

THE FLORIDA BAR, Complainant, v. Stephen M. WITT, Respondent.

No. 80471.

Supreme Court of Florida.

Nov. 18, 1993.

John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and John V. McCarthy, Bar Counsel, Tallahassee, for complainant.

Stephen M. Witt, pro se.

PER CURIAM.

Respondent Stephen Witt has petitioned this Court to review the recommended disciplinary measures in the referee's report. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution. We approve the referee's recommended discipline.

The Bar filed a two-count complaint against Witt relating to his representation of several clients. Count I involves Witt's representation of Donald Richerson in a worker's compensation case and a personal injury case. Although Witt was retained in 1988, Richerson never received any evidence of activity on his two claims, despite numerous inquiries, until he notified Witt in 1991 that he was going to complain to the Bar. Witt responded by sending Richerson $1200 from Witt's personal funds. This payment equalled the amount that Richerson estimated that he was owed on the worker's compensation claim, minus $400 for Witt's fees. Witt never forwarded a release, a settlement agreement, or any follow-up paperwork. In March 1992, Witt filed Richerson's personal injury suit without conferring with Richerson and without sending him a copy of the complaint. Witt did not give Richerson a copy of the Statement of Client's Rights, nor did he discuss fees or costs with Richerson. There was no evidence of pretrial preparation by Witt.

Count II involves Witt's representation of appellants in five appeals to the First District Court of Appeal. In each of the appeals, the district court issued a show cause order because Witt failed to timely file an initial brief. Two of the appeals were dismissed by the district court due to Witt's failure to file a brief or respond to the show cause order. In two other appeals, Witt responded to the show cause orders by moving to dismiss the appeal, but the district court rejected the motions and ordered that briefs be filed. In one of those cases, the district court ultimately reversed on two of the issues contained in a supplemental brief ordered by the court.

The referee recommends that Witt be found guilty as to both counts of the complaint. As to Count I, the referee recommends that Witt be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-1.1 (a lawyer shall provide competent representation to a client; competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation); rule 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); rule 4-1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); rule 4-1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); rule 4-1.5 (fees for legal services); rule 4-1.8(e)(1) (a lawyer shall not provide financial assistance to a client in connection with a pending or contemplated litigation, except that a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter); rule 4-1.8(e)(2) (a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client); and rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

As to Count II, the referee recommends that Witt be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-1.1; rule 4-1.3; rule 4-3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal); rule 4-8.4(c); and rule 4-8.4(d) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice).

The referee recommends that Witt be suspended from the practice of law for ninety-one days and that he be required to petition the Court for reinstatement and prove rehabilitation. As a condition of rehabilitation, the referee recommends that Witt be required to take and pass the ethics portion of the Florida Bar Exam and to pay any costs associated with the exam. In recommending this discipline, the referee considered Witt's personal history and past disciplinary record, including his admission to the Bar in 1977 and a private reprimand that he received in 1989.

Witt does not dispute the referee's factual findings or findings as to guilt, but only argues that probation rather than suspension is the appropriate sanction. Witt claims that none of his clients lost any rights due to his inaction. As to Count I, Witt claims that Richerson failed to obtain the medical proof necessary to proceed to trial, and that Witt filed the action prior to the statute of limitations in order to avoid injury to Richerson. As to Count II, Witt contends that the...