The Florida Bar v. Horowitz, s. 87415
| Decision Date | 10 July 1997 |
| Docket Number | Nos. 87415,87806 and 87913,s. 87415 |
| Citation | 697 So.2d 78 |
| Parties | 22 Fla. L. Weekly S426 THE FLORIDA BAR, Complainant, v. Howard Elliot HOROWITZ, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Lorraine C. Hoffman, Bar Counsel, Ft. Lauderdale, for Complainant.
Roger G. Stanway, Hollywood, for Respondent.
Attorney Howard Horowitz has petitioned this Court to review a referee's recommendation that he be disbarred. We approve the referee's recommendation and disbar Horowitz. We have jurisdiction. Art. V, § 15, Fla. Const.
The Florida Bar filed three separate complaints against Horowitz in 1996, and Horowitz did not answer any of the three complaints. In cases number 87,415 and 87,806, the grievance committee determined probable cause, and the matters were referred to the referee without respondent's appearance before the committee. In case number 87,913, Horowitz appeared before the committee and waived probable cause, and the matters therein were referred to the referee. The referee found Horowitz guilty of violating numerous Rules Regulating The Florida Bar. The referee granted the Bar's motion to consolidate all three cases before the referee for final hearing. A hearing was held solely on the issue of sanctions because the referee granted the Bar's motions for default as to factual allegations. The referee recommended that Horowitz be disbarred.
In this appeal, Horowitz contends that he should not be disbarred because the referee failed to take into account the fact that he was suffering from clinical depression when the misconduct occurred. The Bar maintains that the referee did consider Horowitz' mental state before rendering his recommendation and that disbarment is warranted because the referee found respondent guilty of multiple violations of more than twenty of the Rules Regulating The Florida Bar.
The three consolidated cases involved three separate clients whom Horowitz represented. Case I (No. 87,415) involved a case in which Horowitz was paid to help a client become the legal guardian for her brain-damaged child. In Case II (No. 87,806), Horowitz was retained to represent a client who was appealing a decision of the Broward County Board of Adjustment. In Case III (87,913), a general contractor retained Horowitz to collect payments due in two construction projects. In all three cases, the clients accused Horowitz of failing to perform the representation for which they had paid him.
Case I, No. 87,415 (The Starbeck Case)
Traci Starbeck is a brain-damaged individual who resides at a residential school in Fort Lauderdale known as the Ann Storck Center. Her father, Pat Starbeck, was her legal guardian until 1994. On March 3, 1994, Pat Starbeck suffered a massive heart attack which left him comatose and brain-damaged. Shortly after this event, Traci's mother, Kay Starbeck, flew to Florida from her home in Colorado and retained respondent for the purpose of obtaining guardianship of Traci. On March 11, 1994, Ms. Starbeck signed an oath of successor guardian and a petition for appointment of successor guardian. She paid Horowitz a $500 retainer fee. On July 21, 1994, Horowitz sent Ms. Starbeck a letter inquiring as to the health of Pat Starbeck. In response, Ms. Starbeck telephoned Horowitz and told him that her ex-husband had died on July 3, 1994. During the next fourteen months, Ms. Starbeck wrote several letters
to Horowitz requesting information on the progress of the guardianship matter and also caused the Director of Social Services at the Ann Storck Center to try to contact Horowitz. During this fourteen-month period, Horowitz failed to respond to Ms. Starbeck or administrators at the Ann Storck Center. On August 8, 1995, officials at the center sent Ms. Starbeck a letter explaining the dire consequences of having no living court-appointed guardian should Traci Starbeck need emergency treatment. Ms. Starbeck also faxed a copy of the center's letter to Horowitz. Horowitz failed to respond.
On September 22, 1995, the Bar sent Horowitz a copy of the original complaint form filed by Kay Starbeck and asked for a response thereto. Horowitz failed to respond to the Bar. On October 17, 1995, the Bar sent by certified mail another letter to Horowitz, again asking for a response to Starbeck's complaint. Again, Horowitz failed to respond.
Case II, No. 87,806 (The Burick Case)
On September 20, 1993, Steve Burick retained Horowitz to appeal a decision entered by the Board of Adjustment, Code and Zoning Enforcement Division of Broward County (the Board). Mr. Burick paid Horowitz a retainer fee of $1,000.
On September 20, 1993, Horowitz filed a notice of appeal with the Board. On October 1, 1993, Horowitz filed a notice of appeal in the Seventeenth Judicial Circuit. Between October 1, 1993, and August 30, 1994, Horowitz filed no paper on behalf of Mr. Burick. On August 30, 1994, Judge Henning dismissed the case for lack of prosecution, stating that there was no activity in the case subsequent to the filing of the notice of appeal. On May 25, 1995, Mr. Burick attended a meeting of the Board; Horowitz did not attend.
After the meeting, Mr. Burick contacted Horowitz, who said that he was aware of the final order and that he had filed papers on Mr. Burick's behalf after the order was entered. Horowitz told Mr. Burick that he could come to his office on June 1, 1995, to see the paperwork. On the morning of June 1, 1995, Horowitz' secretary called Mr. Burick, at Horowitz' direction, and told him that copies of the paperwork had been mailed to him on May 31, 1995. Mr. Burick went to Horowitz' office anyway on June 1, 1995. While at the office, Mr. Burick saw his file, which had nothing in it after the 1993 notice of appeal.
Mr. Burick never received anything in the mail from Horowitz' office following the May 31, 1995, telephone call in which he was told the papers had been mailed. Horowitz failed to return Mr. Burick's telephone calls or otherwise advise him as to the true status of the matter.
Horowitz charged a $1,000 retainer fee. He filed a notice of appeal, but did no other legal work on Mr. Burick's behalf, thereby charging a clearly excessive fee.
On July 26, 1995, a grievance committee issued a subpoena duces tecum compelling Horowitz to produce to the Bar no later than September 18, 1995, specific documents pertaining to his trust account. Despite the fact that a substantial portion of the subpoenaed materials were minimum trust accounting records as defined by Rule Regulating the Florida Bar 5-1.2(b), Horowitz produced only the canceled checks and bank statements pertaining specifically to the Burick matter.
Case III, No. 87,913 (The Bernard Case)
Horowitz waived probable cause at the grievance committee hearing on this matter.
MB Construction, Inc. (MB), a licensed general contractor, performed certain labor and supplied certain materials at a project known as Worldwide Construction/Orange City and at a project known as General Cinema. MB claimed not to have received certain payments which the general contractors and/or owners of such projects agreed to pay for the labor performed and the materials supplied by MB at such projects. MB retained Horowitz, who undertook MB's representation in connection with MB's stated objectives of filing mechanics' liens and collecting the amounts claimed due thereunder through appropriate foreclosure proceedings. Horowitz filed a claim of lien in the amount of $77,215.90 against the realty comprising the Worldwide Construction/Orange City project. He also filed a claim of lien in the amount of $42,742.20 against the realty comprising the General Cinema project. Horowitz neither took action to extend such liens nor commenced any proceedings to foreclose same within the applicable statutory period. As a result of Horowitz' failure to act, MP's liens against the subject projects' realty expired.
Despite his knowledge that he had permitted his client's claims of lien to expire, Horowitz did not advise his client thereof.
Despite Horowitz' knowledge that his client's liens had expired, upon inquiry by the client regarding the status of such liens and any actions commenced to enforce the same, Horowitz represented to his client as follows:
As to the remaining numbers against Worldwide, I do not have a trial date. There is no certainty as to when the trial will be set but it should be shortly due to the age of the matters.
At the time Horowitz made such representation to his client, Horowitz knew that there was to be no trial setting as represented by him. In fact, Horowitz had not commenced any actions to foreclose his client's liens and knew that such liens had expired.
K and B Construction Inc. (KB), a licensed general contractor, performed certain labor and supplied certain materials at a project known as Bayshore Yacht and Tennis Club. KB claimed not to have received certain payments which the general contractor and/or owner of such project agreed to pay for the labor performed and the materials supplied by KB at such project. KB retained Horowitz, who undertook KB's representation in connection with KB's stated objectives of filing a mechanic's lien and collecting the amount claimed due thereunder through appropriate foreclosure proceedings. Horowitz filed a claim of lien in the amount of $21,052.50. Horowitz neither took action to extend such lien nor commenced any proceedings to foreclose the same within the applicable statutory period. As a result of Horowitz' failure to act, MB's lien against the project realty expired.
Horowitz undertook representation of KB in connection with a claim asserted by KB against a project known as Canadian Motel. Horowitz effected a settlement of KB's claim in the total amount...
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