The Florida Bar v. Carlon, No. SC95539

• Decision Date: 25 April 2002
• Docket Number: No. SC95539, No. SC00-1344.
• Citation: 820 So.2d 891
• Parties: THE FLORIDA BAR, Complainant, v. John T. CARLON, Jr., Respondent.
• Court: Florida Supreme Court

820 So.2d 891

THE FLORIDA BAR, Complainant, v. John T. CARLON, Jr., Respondent.

Nos. SC95539, SC00-1344.

Supreme Court of Florida.

April 25, 2002.

Rehearing Denied June 24, 2002.

John F. Harkness, Jr., Executive Director, and John A. Boggs, Staff Counsel, Tallahassee, FL; and David M. Barnovitz, Bar Counsel, and Ronna Friedman Young, Co-Bar Counsel, Fort Lauderdale, FL, for Complainant.

John T. Carlon, Jr., pro se, Fort Lauderdale, FL, for Respondent.

PER CURIAM.

Upon consideration of the motion for rehearing, we withdraw our previous opinion and issue the following opinion.¹

We have for review a referee's report regarding an alleged ethical breach by respondent John T. Carlon, Jr., during his representation of Darlene Woodburn (Woodburn matter). We have jurisdiction. See art. V, § 15, Fla. Const. During the pendency of that review, Carlon requested review of a separate referee's report regarding another alleged ethical beach by Carlon committed during his representation of Bruce and Richard Whalley (Whalley matter). We have jurisdiction over that review pursuant to the same constitutional provision. We have consolidated our review of these cases.

WOODBURN MATTER

The Florida Bar filed a complaint against respondent John T. Carlon, Jr., alleging that Carlon charged a clearly excessive fee in connection with his representation of Darlene Woodburn. See R. Regulating Fla. Bar 4-1.5(a). The appointed referee² found Carlon guilty of violating rule 4-1.5(a) and recommended that Carlon be: (1) suspended for ninety-one days; (2) ordered to pay restitution to Woodburn, within thirty days of the date of this Court's order, in the amount of $3,340.10 plus interest from December 18, 1997; and (3) ordered to pay the Bar's costs in the amount of $1,160.20.³

The record indicates that Woodburn telephoned Carlon in December 1997 seeking assistance in securing an asset in Arizona improperly allocated to her ex-husband under an Arizona divorce decree. There was no prior attorney-client relationship. Carlon advised Woodburn that she would have to conform to both Florida and Arizona laws. On December 18, 1997, Woodburn and Carlon entered into a written retainer agreement. This agreement set forth Carlon's fee schedule and stated that Carlon's hourly rate was $250, that he required a $4000 retainer, and that he would charge a $500 administrative fee for opening the file. Woodburn paid Carlon the $4000 retainer.

Between December 18, 1997, and March 27, 1998, Carlon sent identical letters to twelve separate Arizona attorneys soliciting their interest in securing the asset. Carlon also sent identical letters to two separate Arizona attorneys soliciting their interest in a possible legal malpractice action against Woodburn's former attorney. The names of the Arizona attorneys were extracted by Carlon from a Martindale-Hubbell directory. After not hearing from Carlon, Woodburn independently hired an Arizona attorney on April 1, 1998. That attorney successfully obtained an amended Arizona divorce decree and consequently secured the asset for Woodburn. The Arizona attorney charged Woodburn $404. For his services Carlon charged Woodburn a total of $3,340.10 and refunded her $659.90 from the $4000 retainer. Carlon's total charge was the sum of $2825 in services, $15.10 in actual costs, and a $500 administrative fee for opening the file.

In her findings of fact, the referee found in pertinent part:

H. As evidenced by the two (2) bills rendered by respondent to Woodburn, the only services claimed to have been rendered by respondent to Woodburn consisted of an initial consultation, securing names from Martindale-Hubbell, drafting and mailing the two (2) above referenced form letters, and receiving and responding to his client's two correspondences regarding respondent's fees.

I. Respondent's task in securing names from Martindale-Hubbell for purposes of obtaining Arizona counsel for Woodburn did not present respondent with a novel, complex or difficult question requiring any skill other than the ability to extract names from a directory.

J. In undertaking representation of Woodburn there was no likelihood that the acceptance of such employment would preclude other client employment of respondent.

K. The significance of, amount and responsibility involved in the subject matter of Woodburn's representation was minimal.

L. Respondent obtained no results for Woodburn.

M. Woodburn imposed no time limitations upon respondent nor did any circumstances arise during the course of his representation of Woodburn which imposed any such time limitations.

N. Woodburn made no special time demands or requests of the respondent.

O. There was no prior attorney/client relationship between the respondent and Woodburn nor any unusual nature or length of the professional relationship.

P. Respondent's representation of Woodburn demonstrated no skill, expertise or efficiency of effort.

Q. Upon a review of the facts surrounding respondent's representation of Woodburn, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee (including a $500.00 administrative fee for opening Woodburn's file) exceeds a reasonable fee for services provided to such a degree as to constitute clear overreaching and/or an unconscionable demand by respondent.

R. Except for the $659.90 refund ... respondent has made no further refunds to Ms. Woodburn.

Florida Bar v. Carlon, No. SC95539, report of referee at 3-5 (report filed Mar. 13, 2000) (Woodburn Report).

Following these findings, the referee determined that respondent violated rule 4-1.5(a). In considering her recommended sanctions, the referee found that Carlon had a dishonest motive and failed to acknowledge the wrongful nature of his conduct, and that Woodburn suffered actual and substantial harm as a result of respondent's misconduct. The referee also considered Carlon's previous disciplinary history:

In Florida Bar v. Carlon, 505 So.2d 1325 (Fla.1987), Carlon received a public reprimand for billing and suing a homeowner's association, securing a default judgment and garnishing the association's bank account, all in violation of a fee agreement.

In Florida Bar v. Carlon, October 15, 1996, Florida Bar File No. 95-51,391(17H), respondent received an admonishment for minor misconduct for running an advertisement considered to be misleading.

In Florida Bar v. Carlon, 727 So.2d 912 (Fla.1/28/99) respondent was placed on indefinite probation with conditions for failing to make restitution directed in connection with the admonishment he received in Florida Bar File No. 95-51,391(17H).

Woodburn Report at 9.

WHALLEY MATTER

The Florida Bar alleged that Carlon violated rule 4-1.5(a) by charging a clearly excessive fee in his representation of Bruce Whalley and Richard Whalley (the Whalleys) in connection with the administration of the estate of their mother, Stella A. Whalley, who died intestate on May 9, 1998. The appointed referee⁴ found Carlon guilty of violating rule 4-1.5(a) and recommended that Carlon be: (1) suspended for ninety-one days; (2) ordered to pay restitution to the Whalleys within thirty days of the date of this Court's order in the amount of $6580 plus interest from November 30, 1998 (the date of Carlon's final invoice); and (3) ordered to pay the Bar's costs in the amount of $1,155.25.

The record indicates that the Whalleys were referred to Carlon by a mutual friend of Carlon and the Whalleys. There was no previous relationship between Carlon and Bruce, Richard, or Stella Whalley. The estate consisted of a residence valued at $106,000, two bank accounts valued at approximately $8000, and miscellaneous personal property valued at $500. The estate had no creditors, and no claims were filed against the estate. The Whalleys were the sole beneficiaries and distributees of the estate.

The Whalleys agreed that Bruce would petition to be appointed personal representative. Carlon advised that there were two ways he could charge: either hourly or by a flat fee. The Whalleys requested that Carlon charge whichever way would be least expensive. The Whalleys and Carlon signed a written fee agreement on May 16, 1998, in which the Whalleys agreed to pay Carlon $200 per hour. Carlon charged and received $11,080 in fees for his representation of Bruce Whalley as personal representative. The amount included $120 which Carlon agrees was an overcharge due to a mathematical error on Carlon's part. Carlon was entitled to an approximate fee of $3435 under section 733.6171, Florida Statutes (2000).

The referee found that the administration of this estate was simple and presented no novel, complex, or difficult questions. The only unusual issue presented was a "wild mortgage" on the real property, which the purchaser's attorney resolved. The referee further found that there was no likelihood that Carlon's representation of the Whalleys would preclude other representation. The Whalleys made no special time demand. The estate was closed in ordinary fashion on waivers, without an accounting.

The referee found, consistent with the testimony of the Bar's expert, a board-certified wills, trusts, and estates attorney, that $3500 would have been a reasonable fee in this case, that $4500 would be excessive, and that any fee in excess of $6000 would be clearly excessive. The referee also found that Carlon charged for unnecessary research, unnecessary travel, secretarial functions, and other inappropriate activities, all at the $200 contract rate.

Based upon these findings, the referee found that Carlon violated rule 4-1.5(a). In developing her recommended sanctions, the referee found no mitigating factors. In aggravation, the referee found that Carlon had a selfish motive in charging a clearly excessive fee, that his client suffered actual harm, and that Carlon refused to acknowledge the wrongful nature of his conduct. The referee considered Carlon's prior disciplinary history, which was...