The Florida Bar v. Lawless, 80117

• Decision Date: 02 June 1994
• Docket Number: No. 80117,80117
• Citation: 640 So.2d 1098
• Parties: 19 Fla. L. Weekly S297 THE FLORIDA BAR, Complainant, v. William F. LAWLESS, Respondent.
• Court: Florida Supreme Court

Page 1098

640 So.2d 1098

19 Fla. L. Weekly S297

THE FLORIDA BAR, Complainant, v. William F. LAWLESS, Respondent.

No. 80117.

Supreme Court of Florida.

June 2, 1994.

Rehearing Denied Aug. 15, 1994.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jan K. Wichrowski, Bar Counsel, Orlando, for complainant.

John A. Weiss, Tallahassee, for respondent.

PER CURIAM.

This attorney-discipline proceeding is before the Court on petition of The Florida Bar. We have jurisdiction based on article V, Sec. 15 of the Florida Constitution.

In its petition for review, The Florida Bar contests the ninety-day suspension that the referee recommended for William F. Lawless based on his handling of an immigration case. The Bar urges this Court to impose a ninety-one-day suspension because it would require proof of rehabilitation. Lawless cross-appealed, arguing that a public reprimand is appropriate and that this Court should not impose other recommended sanctions. ¹ We find that a ninety-day suspension, followed by three years on probation, serves the purposes of attorney discipline. We also impose the other sanctions the referee recommended.

A Canadian couple, Michael and Barbara Seguin, hired Lawless in 1987 to help them acquire permanent residency status in the United States. Lawless initially contracted to acquire residency status for Michael Seguin for a flat fee of $5,000 plus expenses. The Seguins later met with Lawless and paralegal Charles Aboudraah. Although Aboudraah did not work in Lawless's office, Lawless had worked with the paralegal and said he was experienced in immigration cases. Lawless said he would supervise the case, but the Seguins were to contact Aboudraah if they had questions.

From March 19, 1987, through February 11, 1988, the Seguins paid $12,546 to Aboudraah, including $725 to pursue a visa for Barbara Seguin. They thought these payments included the remaining $2,500 of Lawless's flat fee and that Aboudraah gave Lawless a share of these payments. Aboudraah told the Seguins their paperwork had been filed with the Immigration and Naturalization Service and that they were waiting for the INS to send visa cards.

In January 1990 the Seguins received a letter from the INS seeking information about their residency status and indicating that they had not responded to other letters about the matter. When the Seguins asked Lawless and Aboudraah about the letter, they were assured Aboudraah was handling their case.

Soon, however, the Seguins learned that the INS was investigating Aboudraah. Aboudraah became less available to them and he ultimately closed his office. The Seguins contacted Lawless, who discovered that there was no application on file for either Barbara or Michael Seguin. Thus, the Seguins had been living illegally in the United States since 1986.

In April 1990 Lawless told the Seguins he had not received any money from their payments to Aboudraah. He also said he had not been associated with Aboudraah in more than two years. Although Lawless submitted visa applications for the Seguins, they eventually consulted another attorney because they did not think Lawless understood the immigration procedures needed to conclude their case. The Seguins ultimately obtained visas that allowed them to live legally in the United States and operate their business.

The Bar filed a formal complaint against Lawless in 1992. The referee who heard this case found that Lawless failed to adequately supervise Aboudraah's handling of the case. He recommended finding Lawless guilty of violating these Rules of Professional Conduct: 4-1.3 (failing to act with reasonable diligence and promptness in representing clients); 4-5.3 (failing to make reasonable efforts to ensure that a nonlawyer employee's conduct is compatible with the lawyer's professional obligations); and 4-8.4(a) (violating or attempting to violate the Rules of Professional Conduct). ²

The referee recommended suspending Lawless from the practice of law for ninety days, followed by three years on probation. The referee found that once informed of problems with Aboudraah, Lawless did what he could to salvage a damaging situation. He noted, however, that Lawless created the problem by bringing Aboudraah into the case. In addition, Lawless's disciplinary history included a private reprimand on a real estate matter and two public reprimands on immigration matters. ³

The Bar argues that Lawless's disciplinary history warrants a suspension of at least ninety-one days, which would require proof of rehabilitation. See R. Regulating Fla.Bar 3-5.1(e). Lawless contends that a public reprimand is appropriate. He also raises four issues on cross-appeal. ⁴

Initially, we consider whether to depart from the referee's recommended suspension of ninety days. A referee's findings of fact carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. The Fla. Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986). This Court's scope of review is somewhat broader when it reviews a referee's recommendation for discipline because the Court ultimately has the responsibility to order an appropriate sanction. The Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989). A bar disciplinary action must serve three purposes: the judgment must be fair to society, it must be fair to the attorney, and it must be severe enough to deter other attorneys from similar misconduct. The Fla. Bar v. Pahules, 233 So.2d 130, 132 (Fla.1970).

The Bar argues that given Lawless's disciplinary history, nothing less than a ninety-one-day suspension is an adequate sanction. Lawless contends that a public reprimand is sufficient because this Court has imposed public reprimands in other cases involving a lawyer's failure to supervise nonlawyer employees. See, e.g., The Fla. Bar v. Fields, 520 So.2d 272 (Fla.1988); The Fla. Bar v. Armas, 518 So.2d 919 (Fla.1988); The Fla. Bar v. Carter, 502 So.2d 904 (Fla.1987); The Fla. Bar v. Van Deventer, 368 So.2d 48 (Fla.1979).

We disagree with both the Bar and Lawless. This Court in general "deals more severely with cumulative misconduct than with isolated misconduct." The Fla. Bar v. Greenspahn, 386 So.2d 523, 525 (Fla.1980). Thus, given Lawless's disciplinary history, this case warrants more than a mere public reprimand. ⁵

Yet this case does not merit a sanction that would require proof of rehabilitation. Although Lawless clearly was deficient in his supervision of Aboudraah, he tried to rectify the situation when he learned that Aboudraah had neglected the Seguins' case. Thus, we find that a ninety-day suspension, followed by three years on probation, serves the purposes of attorney discipline. This judgment is fair to society because it penalizes Lawless for his neglect; it is fair to Lawless because it emphasizes his responsibilities as a lawyer yet is not unduly harsh; and it is severe enough to deter other attorneys from similar misconduct.

Turning to Lawless's cross-appeal, we discuss only two of the issues he raises.

First, we uphold the referee's recommendation that Lawless pay restitution to the Seguins during his probation. We agree with the referee that "had it not been for [Lawless], the Seguins would not have been subjected to Charles Aboudraah's misconduct." Lawless's initial contract with the Seguins called for a $5,000 flat fee plus expenses. After Lawless introduced the Seguins to Aboudraah and assured them he was supervising the case, the Seguins paid $12,546 to Aboudraah. ⁶ Whether Lawless ever received that money is not the issue: He was responsible for the conduct of his nonlawyer employee and thus must reimburse the Seguins.

Second, we find that the referee's recommendations about supervising paralegals and...