The Florida Bar v. Brake
Decision Date | 07 September 2000 |
Docket Number | No. SC88104.,SC88104. |
Citation | 767 So.2d 1163 |
Parties | THE FLORIDA BAR, Complainant, v. Eileen M. BRAKE, Respondent. |
Court | Florida Supreme Court |
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.
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:
The referee recommended that Mrs. Brake be suspended for ninety days:
To continue reading
Request your trial-
The Florida Bar v. Shoureas
...or tempted to become involved in like violations. Florida Bar v. Bailey, 803 So.2d 683, 694-95 (Fla.2001) (quoting Florida Bar v. Brake, 767 So.2d 1163, 1169 (Fla.2000)).6 As a general rule, the Court will not second-guess a referee's recommended discipline as long as it (1) is authorized u......
-
The Florida Bar v. Bailey, SC96767.
...judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations. Florida Bar v. Brake, 767 So.2d 1163, 1169 (Fla.2000) (quoting Florida Bar v. Cibula, 725 So.2d 360, 363 In light of Bailey's egregious and cumulative misconduct, and the abse......
-
Fla. Bar v. Winters
...Court has held that this rule “applies only when a lawyer engages in misconduct while employed in a legal capacity,” Fla. Bar v. Brake, 767 So.2d 1163, 1168 (Fla.2000) (emphasis added),3 we conclude that because Respondents' misconduct in this case occurred in their capacities as associate ......