The Florida Bar v. Daniel, s. 78063

• Decision Date: 30 September 1993
• Docket Number: Nos. 78063,78065,s. 78063
• Citation: 626 So.2d 178
• Parties: 18 Fla. L. Weekly S517 THE FLORIDA BAR, Complainant, v. William F. DANIEL, Respondent.
• Court: Florida Supreme Court

Page 178

626 So.2d 178

18 Fla. L. Weekly S517

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

Nos. 78063, 78065.

Supreme Court of Florida.

Sept. 30, 1993.

Rehearing Denied Nov. 17, 1993.

John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, and James N. Watson, Jr., Bar Counsel, Tallahassee, for complainant.

William F. Daniel, pro se.

PER CURIAM.

William F. Daniel seeks review of the referee's reports in these consolidated disciplinary proceedings finding him guilty of misconduct and recommending concurrent thirty-day suspensions. We have jurisdiction ¹ and approve the referee's findings and recommended discipline.

Two complaints were filed against Daniel. Case no. 78,065 deals with Daniel's failure to get court approval of a settlement that was reached with an insurance company for personal injuries sustained by a minor. ² Daniel was charged with violating the following Rules Regulating The Florida Bar: rule 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); rule 4-1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); rule 4-1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); rule 4-1.5(a) (an attorney shall not collect an illegal or prohibited fee); rule 4-1.15(b) (upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person; a lawyer shall promptly deliver any funds or other property that the client or third person is entitled to and, upon request by client or third party shall promptly render a full accounting regarding such property); rule 4-1.15(d) (a lawyer shall comply with The Florida Bar Rules Regulating Trust Accounts); rule 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); and rule 5-1.1 (money or other property entrusted to an attorney for a specific purpose, including advances for costs and expenses, is held in trust and must be applied only to that purpose).

Case no. 78,063 deals with Daniel's failure to effect a public sale after obtaining a judgment in foreclosure for his clients. ³ Daniel was charged with violating rules 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); and 4-3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client) of the Rules Regulating The Florida Bar.

Copies of the complaints and requests for admissions were sent by certified mail to Daniel's record Bar address on June 10, 1991, and were signed for by Daniel on June 17, 1991. After receiving no response from Daniel to either the complaints or the requests for admissions, the Bar filed a motion to deem matters admitted and motions for summary judgment. Copies of the motions also were sent to Daniel's record Bar address by certified mail, but were returned unclaimed.

A hearing on the Bar's motions was held on January 14, 1992. Daniel made a special appearance to contest jurisdiction, maintaining that the referee lacked jurisdiction because, among other things, the Bar had not served him with a "filed" copy of the complaints. After finding that the Bar had effected proper service of its complaints and requests for admissions, as well as its motions for summary judgment, the referee heard arguments.

Because Daniel failed to respond to the Bar's requests for admissions all matters for which an admission was requested were deemed admitted. Based upon the admitted facts, the referee found Daniel guilty of the misconduct charged in both complaints. The referee deferred argument on the appropriate discipline and entered initial reports as to his findings of fact and determinations of guilt. On March 30, 1992, Daniel petitioned this Court for review of the initial reports. On June 18, 1992, the petition was dismissed as premature.

A hearing to determine the appropriate disciplinary sanctions was held on December 8, 1992. Daniel renewed his objection to the referee's jurisdiction to hear the cases. After making the objection, Daniel left the hearing without making any argument as to the appropriate discipline and before the Bar presented its argument as to discipline. On January 22, 1993, the referee issued final reports recommending concurrent thirty-day suspensions ⁴ and assessing Daniel costs.

Daniel raises the same claims in connection with both cases. Daniel's first contention is that there is no evidence to support the referee's findings of fact. When Daniel failed to respond to the Bar's requests for admissions, the requests which contained the same facts as those alleged in the Bar's complaints were properly deemed admitted. Fla.R.Civ.P. 1.370(a); see The Florida Bar v. Greene, 515 So.2d 1280 (Fla.1987). The matters deemed admitted pursuant to rule 1.370(a) clearly serve as substantial competent evidence supporting the referee's findings.

Daniel's next assertion, that entry of summary judgment is not authorized in disciplinary proceedings, is likewise without merit. Under Rule Regulating The Florida Bar 3-7.6(e)(1), once a formal complaint has been filed and forwarded to a referee for hearing, the Florida Rules of Civil Procedure apply except where otherwise provided in the rule. Florida Rule of Civil Procedure 1.510(c) provides for summary judgment where, as here, it is shown there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.

We also reject Daniel's challenge to the summary judgments based on the Bar's alleged failure to serve Daniel with the motions for summary judgment. The motions for summary judgment, the complaints, and requests for admissions, were sent by certified mail to Daniel's record Bar address, in accordance with Rule Regulating The Florida Bar 3-7.11(b), (c). Such was all that was required to effect proper service. See The Florida Bar v. Bergman, 517 So.2d 11 (Fla.1987). Moreover, it is apparent from the record that Daniel had actual notice of the proceedings against him.

Daniel next maintains that the referee's findings as to costs deprived him of due process and that Rule Regulating The Florida Bar 3-7.6(k)(1)(E) is unconstitutional. Daniel's contention that he was not given an opportunity to challenge or refute the costs that were assessed against him is totally without merit. Daniel appeared at the December 8, 1992 hearing at which the appropriate discipline and costs were to be addressed. However, after renewing his objection to the referee's jurisdiction, Daniel voluntarily excused himself from the hearing. After Daniel left, Bar counsel made a brief argument as to the appropriate discipline and submitted a memorandum addressing discipline and costs. Daniel clearly was afforded an opportunity to be heard; the fact that he voluntarily chose not to take advantage of that opportunity does not offend due process.

We also reject Daniel's contention that the $500 charge for administrative costs provided for in rule 3-7.6(k)(1)(E) is unconstitutional because it is "a policy matter reserved for the legislative branch of the government." Under article V, section 15 of the Florida Constitution this Court has exclusive jurisdiction to discipline persons admitted to the practice of law. It follows that this Court has exclusive authority to adopt rules addressing all aspects of the disciplinary process, including the costs that can be assessed a respondent.

Daniel raises numerous arguments ⁵ to support his final claim that he was denied due process and equal protection throughout these proceedings. First, he maintains that he was never properly served with the complaint and the requests for admissions because neither was served after the complaint was "filed" in this Court. Rule Regulating The Florida Bar 3-7.4(j) (1990), ⁶ which was in effect at the time these proceedings were initiated, provides in pertinent part:

When a formal complaint by a grievance committee is not referred to the designated reviewer, or returned to the grievance committee for further action, the formal complaint shall be promptly forwarded to and reviewed by bar headquarters staff counsel who shall file the formal complaint, furnish a copy of the formal complaint to the respondent, and a copy of the record shall be made available to the respondent at his or her expense.

Rule Regulating The Florida Bar 3-7.6(g)(5)a, (1990), ⁷ provides:

Any pleading filed in a case prior to appointment of a referee shall be filed with the Supreme Court of Florida and shall bear a certificate of service showing parties upon whom service of copies has been made.

Neither of these rules requires that a complaint be filed with this Court prior to its service on the respondent. In fact, it would appear that rule 3-7.6(g)(5) provides for service of the complaint prior to or contemporaneous with the filing of the complaint in this Court.

Daniel's reliance on Florida Rules of Civil Procedure 1.050 and 1.070 to support his position that he was not properly served is misplaced because the Florida Rules of Civil Procedure only attach after the appointment of a referee and then apply only if no other provision in the rule provides otherwise. Rule Reg. Fla. Bar 3-7.6(e)(1). Moreover, as noted above, it is Rule Regulating The Florida Bar 3-7.11 (b), (c) that provides the procedure for effecting proper service in disciplinary proceedings.

Daniel next maintains that he was denied due process when the referee failed to give him ten days notice of the final hearing on the Bar's motions for summary judgment and motions to deem...