The Florida Bar v. Scott, 73211
| Decision Date | 06 September 1990 |
| Docket Number | No. 73211,73211 |
| Parties | 15 Fla. L. Weekly S448 THE FLORIDA BAR, Complainant, v. Gordon B. SCOTT, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Richard A. Greenberg, Asst. Staff Counsel, and David R. Ristoff, Branch Staff Counsel, Tampa, for complainant.
John A. Weiss, Tallahassee, for respondent.
This cause is before us upon the complaint of The Florida Bar and the report of the referee. 1 Respondent seeks review of the findings of fact and recommendations as to discipline set forth in the referee's report. We approve the recommendation of the referee as to guilt, in part, and approve the recommended discipline.
The referee found that respondent and Stanley E. Lowe had been close personal friends during the years 1977 through 1981, when Lowe passed away. Respondent and Lowe became friends during the time respondent worked for the attorney who had represented Lowe in his dissolution of marriage. During the three years preceding Lowe's death, he conveyed three pieces of property to respondent to avoid creditors. The referee found that respondent knew the purpose of the conveyances. The referee also found that respondent paid no consideration because the arrangement provided that he was to return the properties to Lowe upon his request by executing quit claim deeds.
After Lowe died, respondent informed Lowe's sons, Stanley A. Lowe, Jr. and Jeffrey E. Lowe, that their father had left no assets with which to open an estate. Respondent concealed from them the existence of the properties that their father had transferred to him, and claimed ownership for himself.
Eventually, the two sons learned of the existence of the properties and filed suit to recover them. The suit was settled when respondent paid the sons the proceeds from the sale of the properties.
The referee found respondent guilty of violating The Florida Bar Code of Professional Responsibility. 2
Respondent argues that the findings of the referee are not supported by clear and convincing evidence. We agree with respondent that the Bar failed to demonstrate the existence of an attorney-client relationship between respondent and Lowe. The Bar's complaint does not allege, nor does the record provide, any evidence to permit the conclusion that an attorney-client relationship existed. For these reasons, we disapprove the referee's finding of guilt as to Disciplinary Rules 7-102(A)(7) () and (8) (engaging in conduct contrary to a disciplinary rule while representing a client). The Florida Bar v. Lehrman, 485 So.2d 1276, 1278 (Fla.1986).
In all other respects, the evidence presented sufficiently supports the referee's findings. Respondent essentially argues that the testimony against him was biased and that respondent's testimony should have been accepted by the referee.
However, after listening to the evidence and observing the demeanor of the witnesses, the referee concluded that "the respondent was not being entirely truthful in his testimony." A referee's finding of fact will be upheld unless it is clearly erroneous or lacking in evidentiary support. The Florida Bar v. Colclough, 561 So.2d 1147 (Fla.1990); The Florida Bar v. McKenzie, 442 So.2d 934 (Fla.1983). The burden is upon the party seeking review to demonstrate that the referee's report is "erroneous, unlawful, or unjustified." Rule Regulating Fla.Bar 3-7.6(c)(5). This Court cannot reweigh the evidence or substitute its judgment for that of the trier of fact. We conclude that the referee's findings of fact concerning the remaining violations are supported by competent and substantial evidence. We approve the recommendation of guilt concerning those violations.
Based on her findings, the referee recommended that respondent be suspended from the practice of law for ninety-one days. We approve the referee's recommendation and hereby suspend respondent from the practice of law for ninety-one days. This suspension shall be effective October 8, 1990, thereby giving respondent thirty days to take the necessary steps to protect his clients' interests. Respondent shall accept no...
To continue reading
Request your trial
-
The Florida Bar v. Simring
...and will not be overturned unless the Court finds that it is clearly erroneous or lacking in evidentiary support. The Fla. Bar v. Scott, 566 So.2d 765 (Fla.1990). Thus, in the instant case, the party seeking to overturn the referee's findings has the burden of showing that the referee's fin......
-
The Florida Bar v. Weiss, 76407
...our judgment for that of the referee unless it is clearly erroneous or lacking in evidentiary support. E.g., The Fla. Bar v. Scott, 566 So.2d 765, 767 (Fla.1990). The record in this case does not sustain all the rule violations cited. Specifically, the record does not support findings that ......
-
The Florida Bar v. Rosen, 77345
...presumed correct and will be upheld by this Court unless they are clearly erroneous or without support in the record. The Florida Bar v. Scott, 566 So.2d 765 (Fla.1990); The Florida Bar v. Colclough, 561 So.2d 1147 (Fla.1990); The Florida Bar v. Bajoczky, 558 So.2d 1022 (Fla.1990). In apply......
-
Kenyon, Matter of
...probate.3 Other jurisdictions have also addressed situations involving similar misconduct and fraudulent conveyances. Florida Bar v. Scott, 566 So.2d 765 (Fla.1990) (attorney who concealed property for a friend to avoid creditors committed misconduct); In the matter of Breen, 113 N.J. 522, ......
-
Representing the Debtor: Counsel Beware!
...(but need not) reveal that the client intends to commit a crime. 58. E.g., In re Benson, 854 P.2d 466 (Ore. 1993); Florida Bar v. Scott, 566 So.2d 765 (Fla. 1990); Coppock v. State Bar of California, 749 P.2d 1317 (Cal. 1988); Townsend v. State Bar of California, 197 P.2d 326 (Cal. 1948). 5......