The Florida Bar v. Wilson, 89066
| Decision Date | 16 April 1998 |
| Docket Number | No. 89066,89066 |
| Citation | 714 So.2d 381 |
| Parties | 23 Fla. L. Weekly S227 THE FLORIDA BAR, Complainant, v. David WILSON, III, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Eric M. Turner, Bar Counsel, Orlando, for Complainant.
David Wilson, pro se, Winter Haven, for Respondent.
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical violations by attorney David Wilson, III. We have jurisdiction. Art. V, § 15, Fla. Const. For the reasons expressed in this opinion we approve the referee's factual findings and recommendations as to guilt and we reject the recommended discipline. We suspend Wilson from the practice of law for one year to be followed by two years' probation under the terms recommended by the referee.
The Bar filed a complaint against Wilson alleging violations of rule 4-1.9 () and rule 4-8.4(d)(attorney shall not engage in conduct prejudicial to the administration of justice), of the Rules Regulating the Florida Bar. The charges arose from Wilson's representation of Betty Wells in a marital dissolution proceeding against her husband and alleged acts of misconduct during those proceedings. The referee held a final hearing and entered a report making the following findings.
In June 1990, Betty Wells won approximately $8 million in the Florida lottery. Mrs. Wells wished to share the lottery winnings equally with her husband. Mr. and Mrs. Wells contacted Wilson, who filed a petition for declaratory judgment against the Department of the Lottery on their behalf. The final judgment provided that Mr. and Mrs. Wells would share the lottery proceeds equally. The referee specifically found that Wilson had represented Mr. Wells in the declaratory judgment action and had obtained an award of fifty percent of the lottery winnings for him.
Subsequently, Wilson represented Mr. and Mrs. Wells in several other matters, including the purchase of a home and interceding for them when they experienced problems making mortgage payments. The mortgage issues were active in April 1995, after Mr. Wells filed the dissolution action in March 1995. Wilson represented Mr. Wells on criminal charges in 1993 and represented Mrs. Wells in 1994 after Mr. Wells alleged that she battered him.
At some point, Mr. Wells approached Wilson to represent him in a marital dissolution action against Mrs. Wells. Wilson refused due to his past representation. Mr. Wells obtained other counsel and filed a dissolution action. Wilson filed an answer and counter-petition for dissolution on Mrs. Wells' behalf and moved to set aside the declaratory judgment award which had given Mr. Wells a 50% interest in the lottery winnings. Wilson failed to produce any waiver of conflict documents.
The referee found that Wilson's representation of Mrs. Wells in the dissolution proceeding was a clear conflict of interest in violation of rule 4-1.9, Rules Regulating the Florida Bar. The referee found that Mr. Wells suffered no actual harm because the court denied the motion to set aside the declaratory judgment.
During the course of the dissolution proceeding, Mr. Wells' attorney filed a motion to disqualify Wilson. The trial judge held a hearing on the motion on December 1, 1995, and granted the motion orally from the bench. The judge entered a written order of disqualification on December 12, 1995. After the judge orally granted the motion, but before entry of the written order, Wilson filed a motion for stay pending review, a motion for rehearing on the disqualification, and a motion to recuse the trial judge. The referee found that Wilson's filing of the recusal motion after he had been orally disqualified The referee recommended a ninety-day suspension with automatic reinstatement, followed by a two-year probation under specific probationary terms. In determining the recommended discipline, the referee relied on Wilson's age (44), his many years of practice (Wilson was admitted to the Bar in 1977), and his disciplinary record, which included only a private reprimand in 1992. Wilson petitioned this Court for review of the referee's report.
violated rule 4-8.4(d), Rules Regulating the Florida Bar.
Wilson challenges the referee's findings and conclusions of guilt. A referee's findings regarding guilt are presumed correct and must be upheld unless clearly erroneous or without support in the record. Florida Bar v. Benchimol, 681 So.2d 663, 665 (Fla.1996). The record supports the referee's conclusion that Wilson's representation of Mrs. Wells in the dissolution proceeding was a conflict of interest. The pleadings filed by Wilson in the declaratory judgment action on the lottery proceeds and Mr. Wells' testimony before the referee indicate that Wilson represented both Mr. and Mrs. Wells in that action. The record demonstrates that Wilson assisted Mr. and Mrs. Wells in the purchase of a home and in matters related to the mortgage on their home. Wilson failed to produce any documents showing a waiver of the conflict of interest.
Wilson also challenges the referee's findings regarding the motion to recuse the trial judge. Wilson argues that the order disqualifying him as Mrs. Wells' attorney was not rendered until the judge filed the written order with the clerk and thus the judge was free to change his oral ruling until that time. 1 Wilson relies on MacKenzie v. Super Kids Bargain Store, 565 So.2d 1332 (Fla.1990), arguing that a trial judge faced with a motion to recuse should resolve that motion before making any other rulings.
We find MacKenzie factually inapposite to the case at bar. In that case, a judge was faced with a motion for recusal based on plaintiff's counsel's contribution to the election campaign of the judge's husband. The judge granted the attorney's ore tenus motion for substitution and then denied the motion for recusal. The Court noted that this procedure created the...
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