The Florida Bar v. Lehrman, 63270

• Citation: 11 Fla. L. Weekly 163,485 So.2d 1276
• Decision Date: 10 April 1986
• Docket Number: No. 63270,63270
• Parties: 11 Fla. L. Weekly 163 THE FLORIDA BAR, Complainant, v. Jeffrey E. LEHRMAN, Respondent.
• Court: Florida Supreme Court

Page 1276

485 So.2d 1276

11 Fla. L. Weekly 163

THE FLORIDA BAR, Complainant, v. Jeffrey E. LEHRMAN, Respondent.

No. 63270.

Supreme Court of Florida.

April 10, 1986.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Paul A. Gross, Bar Counsel, Miami, for complainant.

Thomas E. Krause, Coconut Grove, and Robert P. Smith, Jr. and Kathleen Blizzard of Hopping, Boyd, Green and Sams, Tallahassee, for respondent.

PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar. ¹ Respondent petitions for review of the report of the referee, arguing that the referee's conclusions are not supported by the facts. The Bar seeks review of the referee's assessment of certain costs against the Bar.

The record reflects that Donald Guiking, a sophisticated businessman from Holland, first met respondent in 1978. The respondent represented Guiking and his wholly owned corporations Euro-Holland Vastgoed, B.V. and Viscaya, S.A. in a real estate transaction in Martin County. Viscaya purchased the property which was paid for by money and the assumption of a first and second mortgage. The title to the land was immediately transferred to Euro-Holland which assumed the first and second mortgages and itself gave a purchase money third mortgage to Viscaya for the difference between the balance of the first and second mortgages and the purchase price. The respondent also represented Guiking individually in the purchase and sale of Guiking's personal residence.

Because of the termination of the business relationship between Guiking and a Dutch investment group represented by respondent, the respondent testified that he informed Guiking in September of 1980 that he would no longer be able to serve as Guiking's attorney.

In January 1981 Guiking unsuccessfully attempted to secure a short-term loan from several individuals in Dade County for a Caribbean gambling venture. Guiking then approached the respondent to help him locate a private lender. Respondent arranged a six-day loan for Guiking utilizing the funds of another client; Guiking pledged the Viscaya mortgages, worth over $200,000, as security for the loan. Guiking gave respondent power of attorney to record the assignment of these mortgages in the event Guiking defaulted on the loan.

The amount of the loan is the initial source of the Bar's complaint. On January 13 Guiking executed a promissory note for $6,500, but received a check drawn on respondent's trust account for $6,000. Respondent testified that Guiking was in immediate need of cash so he gave him $500 in cash from his own separate funds in addition to the $6,000 of his lending-client's funds, and that, although there were enough funds in his trust account to reimburse himself for the advanced $500, he did not do so. Respondent testified that he arranged this six-day interest-free loan merely as an accommodation to Guiking. Guiking testified that he received only the check for $6,000 and that he signed the promissory note for $6,500 because respondent had explained that the extra $500 was for interest.

When Guiking was unable to repay the loan on January 19 he requested an extension. Respondent informed Guiking that the lender was unwilling to extend the due date any longer than noon, January 20. When Guiking then failed to perform, respondent informed Guiking that the assignment of the Viscaya mortgages had been filed. During a telephone conversation on January 26, Guiking offered the respondent an additional $500 for reassignment of the mortgages. This offer was rejected by respondent during a phone conversation on January 28. Respondent wrote Guiking a letter on January 29 reaffirming that the lender-client would not accept the extra $500 and advised Guiking that it would now take $25,000, to be paid to respondent as trustee, in order for Guiking to reacquire the mortgages. The original loan for $6,000, with $6,500 to be repaid in six days, coupled with the January 29 demand for $25,000, forms the basis of the Bar's complaint.

The referee found that the principle amount of the loan was $6,000 and that the remaining $500 was an assessment of usurious interest, and that the respondent, acting as an attorney for Guiking and the lender-client, permitted himself to be a participant in a scheme or plan whereby a patently usurious, and perhaps criminal, loan of money was arranged. The referee found that the respondent allowed himself to be placed in a position of conflicting interest between clients, and instead of expeditiously withdrawing from further representation of either client, respondent had actively represented the lender-client to the detriment of the borrower-client. The referee found that respondent knew or should have known the demand for $25,000 communicated by respondent to Guiking following Guiking's default, was patently improper and probably illegal, but nonetheless, respondent let himself be utilized for such improper activity.

In the original complaint against respondent, the Bar alleged that the facts in this case constituted violations of Disciplinary Rules 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law) of the Code of Professional Responsibility and article XI, Rules 11.02(2) (violation of the Code of...