The Florida Bar v. Brake

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM
• Citation: The Florida Bar v. Brake, 767 So.2d 1163 (Fla. 2000)
• Decision Date: 07 September 2000
• Docket Number: No. SC88104.,SC88104.
• Parties: THE FLORIDA BAR, Complainant, v. Eileen M. BRAKE, Respondent.

767 So.2d 1163

THE FLORIDA BAR, Complainant, v. Eileen M. BRAKE, Respondent.

No. SC88104.

Supreme Court of Florida.

September 7, 2000.

John F. Harkness, Jr., Executive Director and John Anthony Boggs, Staff Counsel, Tallahassee, Florida, and Arlene Kalish Sankel, Bar Counsel, Miami, Florida, for Complainant.

Eileen Brake, Coral Gables, Florida, Respondent, pro se.

PER CURIAM

We have for review a referee's report regarding alleged ethical breaches by Eileen Brake. We have jurisdiction. Art. V, § 15, Fla. Const. The Florida Bar filed multi-count complaints against Mrs. Brake and her now-deceased husband, Robert. By order dated July 26, 1996, this Court consolidated these two cases for consideration by one referee. During the pendency of this appeal, Mr. Brake died, and the Bar voluntarily dismissed the complaint as to Mr. Brake. The case as to Mrs. Brake was at that time severed. We determine that the appropriate discipline as to Mrs. Brake is a public reprimand by publication of this opinion.

The voluminous record in this case reflects the following facts.¹ Eileen Murphy passed away March 30, 1988. Mrs. Murphy, through her will, appointed her daughter, Eileen Brake, to serve as personal representative of her estate. Mrs. Brake retained her husband, Robert Brake, a lawyer with experience in probate matters, to represent her as personal representative. The beneficiaries of Mrs. Murphy's estate were Mrs. Brake, Dennis Murphy, and Richard Murphy, the decedent's three living children, and her daughter-in-law, Eve Murphy. The estate's primary asset was ninety-six shares of stock in a corporation known as Murphy Investments. The corporation's sole asset was an office building. Upon the advice of a tax attorney, Mrs. Brake conveyed the corporation's interest in the building to the estate and then dissolved the corporation. An appraisal executed in December 1988 valued the office building at $690,000.

Four mortgages encumbered this commercial real estate: three were held by Mrs. Brake, and the fourth was held by both Mr. and Mrs. Brake. The first three mortgages, executed before Mrs. Murphy's death, secured loans to pay expenses for the corporation holding title to the property. The fourth mortgage, executed in December 1988 while Mrs. Brake was personal representative of Mrs. Murphy's estate, secured a loan for payments necessary to dissolve the corporation. The Brakes did not seek court approval before encumbering estate property.

After Mrs. Murphy's death, Mrs. Brake and her siblings decided that the property should be sold for a cash price of $700,000 with a condition of sale being that the property be accepted by the buyer "as is." An offer was tendered by a prospective buyer,² but the contract had conditions that the Brakes believed to be unacceptable. A controversy between the siblings concerning this offer ensued, and a sale of the property to this prospective purchaser was never consummated.

In 1990, the Brakes filed a foreclosure action on their mortgages because the statute of limitations was about to expire and the beneficiaries of the estate would not agree to waive the statute of limitations. Substantial other litigation also arose among the siblings out of the performance of the personal representative's duties by Mrs. Brake and the representation of Mrs. Brake in her role of personal representative by Mr. Brake.³

Mrs. Brake and Dennis Murphy purchased the office building in May 1992 for $595,000. On June 22, 1993, one day after a probate judge entered a substantial surcharge order against Mrs. Brake for malfeasance in the administration of the estate, Mrs. Brake transferred her one-half interest in the building to Mr. Brake.

The Bar's allegations of ethical misconduct, including conflicts of interest, self-dealing, and fraud, stem from Mrs. Brake's handling of the sale of the commercial real estate and Mr. Brake's representation of Mrs. Brake as personal representative. The litigation arising out of Mrs. Murphy's estate and the sale of the office building appropriately has been called "interminable and vexatious." See Brake v. Estate of Murphy, 719 So.2d 333, 333 (Fla. 3d DCA 1998); see also Brake v. Swan, 733 So.2d 1051 (Fla. 3d DCA 1999); Brake v. Murphy, 688 So.2d 403 (Fla. 3d DCA 1997); Brake v. Third District Court of Appeal, 666 So.2d 142 (Fla.1995), cert. denied, 516 U.S. 1147, 116 S.Ct. 1019, 134 L.Ed.2d 99 (1996); Brake v. Murphy, 687 So.2d 842 (Fla. 3d DCA 1996), review denied, 697 So.2d 1217 (Fla.1997); Brake v. Estate of Murphy, 678 So.2d 374 (Fla. 3d DCA 1996); Brake v. Murphy, 661 So.2d 834 (Fla. 3d DCA 1995); Brake v. Murphy, 636 So.2d 72 (Fla. 3d DCA 1994), vacated by Brake v. Murphy, 693 So.2d 663 (Fla. 3d DCA), review denied, 700 So.2d 686 (1997); Murphy v. Estate of Murphy, 621 So.2d 443 (Fla. 3d DCA 1993); Brake v. Stettin, 599 So.2d 669 (Fla. 3d DCA 1992); Brake v. Murphy, 591 So.2d 1025, 1026 (Fla. 3d DCA 1991), enforcement denied, Brake v. Murphy, 626 So.2d 325 (Fla. 3d DCA 1993); In re Estate of Murphy, 573 So.2d 424 (Fla. 3d DCA 1991); Brake v. Estate of Murphy, 559 So.2d 1146 (Fla. 3d DCA 1990). The referee recommended that Mrs. Brake be found guilty of violating rule 4-8.4(c) and (d). With respect to these recommendations, the referee's order states:

A. Introduction

The Florida Bar has filed five separate counts against each of the Respondents. The majority of the charges are based upon conflicts of interest. Respondents maintain that these actions by the Bar are merely attempts by Eve Murphy and her lawyer, Richard Golden to extort a settlement. The Respondents have also consistently argued during these disciplinary proceedings through written motions and oral argument, that the Bar's investigation and prosecution has been in bad faith by Bar counsel. Mr. and Mrs. Brake further assert that they were acting in the best interests of the estate and beneficiaries at all times and that there were never any conflicts of interest.

. . . .

Count II: This Count charges Mrs. Brake with a violation of Rule 4-8.4(d) which states in pertinent part:

"A lawyer shall not: ...

(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis...."

The Referee finds that Mrs. Brake followed the lead of Mr. Brake in their interpretation of the Degani offer, leading to a failure to finalize a sale. In her capacity as Personal Representative, Mrs. Brake was required to maintain a position of fiduciary responsibility which she was obligated to exercise in the best interests of the estate and the other beneficiaries.

The Referee finds that although Mrs. Brake may have subjectively believed that the Degani offer was not valid as presented, she had an affirmative duty to negotiate terms in an effort to come to a firm agreement. Further, since Mrs. Brake had several financial interests in the subject property, it was impossible for her to conduct her responsibilities objectively. Additionally, Mrs. Brake's decision to file adversary proceedings against the beneficiaries increased the antagonism, multiplied the conflicts of interest and prolonged the resolution of the estate proceedings.

Count III

This Count again charges Mrs. Brake with a violation of Rule 4-8.4(d) as in Count II and with a violation of 4-1.8(a) as in Count I above.

Rule 4-1.8(a) does not apply because Mrs. Brake was not in an attorney-client relationship. The Referee finds that filing the foreclosure action on the fourth mortgage constituted a violation of Rule 4-8.4(d) for the reasons stated above and was contrary to Mrs. Brake's fiduciary duties to the other beneficiaries.

Count IV

The Bar charges Mrs. Brake with violation of Rule 4-1.7(a) as in Count I above and Rule 4-4.1(b)....

Count IV also charges Mrs. Brake with a violation of Rule 4-8.4(c)....

Finally, Count IV again charges Mrs. Brake with a violation of Rule 4-1.8(a), as in Counts I and III above.

Once again, Rules 4-4.1(b), 4-1.7(a) and 4-1.8(a) do not apply where there is no attorney-client relationship. However, as explained in Count IV above as to Mr. Brake, the Referee finds that Respondents' explanations as to why they conveyed Mrs. Brake's interest to Mr. Brake are without merit. The Referee finds that Mrs. Brake placed her own interests as well above those of the beneficiaries, despite an absolute conflict.

Count V

This Count charges Mrs. Brake with a violation of Rule 4-3.4(c) which states:

"A lawyer shall not:

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists."

The Referee finds that the Bar has failed to meet its burden of proof as to this Count.

The referee recommended that Mrs. Brake be suspended for ninety days:

The Bar seeks a suspension of one (1) year as to Mrs. Brake's violations. Even more so in Mrs. Brake's case, she was in a fiduciary position to family members. Mrs. Brake appears to be a very devoted wife and mother. Given the circumstances of her life at this time, it is perfectly reasonable that she also is quite agitated and emotionally shaken at the Bar's charges and the disruptions they have caused in her life. However, the Referee finds that a good deal of the problems in the estate proceedings were caused by clouded judgment and an inability to admit that her financial interests in the subject property and antagonistic courses of action were not in the best interest of the estate or other beneficiaries.

In light of Mrs. Brake's fragile mental state, noting that Mrs. Brake is not practicing law, although admitted to the Bar for over forty-five (45) years and there being an absence of prior disciplinary history, the Referee finds that an appropriate penalty is ninety (90) days suspension from the practice

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