The Florida Bar v. McClure, 64093

• Decision Date: 17 January 1991
• Docket Number: No. 64093,64093
• Citation: 575 So.2d 176,16 Fla. L. Weekly 128
• Parties: 16 Fla. L. Weekly 128 THE FLORIDA BAR, Complainant, v. Corrine McCLURE, Respondent.
• Court: Florida Supreme Court

Page 176

575 So.2d 176

16 Fla. L. Weekly 128

THE FLORIDA BAR, Complainant, v. Corrine McCLURE, Respondent.

No. 64093.

Supreme Court of Florida.

Jan. 17, 1991.

Rehearing Denied March 13, 1991.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Diane Victor Kuenzel, Bar Counsel, Tampa, for complainant.

Alan C. Sundberg and F. Townsend Hawkes of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Raymond E. LaPorte, Co-Counsel, Tampa, for respondent.

PER CURIAM.

This proceeding is before the Court on petition for review of a referee's report in a Florida Bar disciplinary proceeding. We have jurisdiction. Art. V, § 15, Fla. Const.

The Florida Bar filed a three-count complaint against Corrine McClure, a member of the bar. Count one alleged that she wrongfully withheld funds from an estate she represented, thus violating the former Code of Professional Responsibility, disciplinary rules 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(5) (conduct prejudicial to the administration of justice). Count two charged the wrongful withholding of funds from a second estate, again in violation of rules 1-102(A)(4) and (5). Count three alleged violations of the former Integration Rule based on failure to perform trust accounting practices and procedures as required by the applicable rule provisions. The referee found the facts to be as alleged in the complaint, found McClure guilty on all counts, and recommended disbarment.

At the hearing before the referee, the bar presented the testimony of a witness who, as a state attorney's investigator, had surreptitiously transmitted and recorded conversations and statements occurring in McClure's office during the course of a criminal investigation in March 1981. The investigator's testimony, McClure says, was based at least in part on the tapes. Conceding that the exclusionary rule in article I, section 12 of the Florida Constitution is inapplicable in bar discipline proceedings, The Florida Bar v. Lancaster, 448 So.2d 1019 (Fla.1984), McClure argues that electronically intercepted evidence is inadmissible in such proceedings because its use is not affirmatively authorized by section 934.08, Florida Statutes (1981). We reject this argument. We find the evidence to have been obtained in accordance with the applicable provisions of chapter 934, Florida Statutes (1981); it therefore does not come within the prohibition against the use of illegally obtained evidence set forth in section 934.06. The investigator who conducted the interception of oral communications in McClure's office acted pursuant to the authority of a state attorney and therefore acted lawfully under section 934.03(2)(c). State v. Williams, 443 So.2d 952 (Fla.1983). Because the gathering of the evidence was not illegal, its use in the proceedings before the referee was not prohibited by the statute.

McClure also argues that the bar presented insufficient evidence to support the referee's finding her guilty of conduct involving dishonesty, fraud, deceit, or misrepresentation. In bar discipline proceedings, the evidence of misconduct must be clear and convincing in order for a referee to find the accused lawyer guilty. The Florida Bar v. Quick, 279 So.2d 4 (Fla.1973); The Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970). The party seeking review has the burden of showing that the referee's findings are "clearly erroneous or lacking in evidentiary support." The Florida Bar v. Wagner, 212 So.2d 770, 772 (Fla.1968). Unless this burden is met, a referee's findings will be upheld on review. The Florida Bar v. Hirsch, 359 So.2d 856 (Fla.1978).

McClure has failed to meet this burden. There is competent, substantial evidence in the record to support the referee's conclusions that McClure's failures to account for estate funds and that the disbursals of such funds to herself were not inadvertent, as she claims. Therefore, we approve the recommended finding of guilt of two counts of violating disciplinary rule 1-102(A)(4).

Counts one and two of the complaint also charged violation of disciplinary rule 1-102(A)(5), which prohibits "conduct that is prejudicial to the administration of justice." The improper handling of the funds of the two estates formed the basis for these charges. Finding the facts to be as alleged in the complaint, the referee found McClure guilty as charged. McClure argues that finding these violations is not supported by sufficient evidence because her mismanagement of the estate funds did not constitute conduct prejudicial to the administration of justice. See The Florida Bar v. Pettie, 424 So.2d 734 (Fla.1982); The Florida Bar v. Burns, 392 So.2d 1325 (Fla.1981). In Pettie we held that a lawyer's illegal conduct, unrelated to his law practice and to any business before the courts, did not constitute conduct prejudicial to the administration of justice and gave examples of some of the kinds of behavior that might violate the rule. The examples, however, did not...