The Florida Bar v. Hollander, 78896
| Decision Date | 05 November 1992 |
| Docket Number | No. 78896,78896 |
| Citation | 607 So.2d 412 |
| Parties | 17 Fla. L. Week. S683 THE FLORIDA BAR, Complainant, v. Bruce Lee HOLLANDER, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Stephen C. Whalen, Bar Counsel, Fort Lauderdale, for complainant.
Bruce Lee Hollander, pro se.
This is a lawyer disciplinary hearing in which Bruce Lee Hollander (Hollander) petitions this Court to review the referee's finding of guilt and recommendation of discipline. The referee recommended to this Court that Hollander receive a public reprimand and be placed on six months' probation. We have jurisdiction based on article V, section 15 of the Florida Constitution. For the reasons expressed, we approve the referee's findings and recommendation.
After reviewing the evidence, the referee found the following facts. Hollander is the sole shareholder and partner in his law firm Hollander and Associates, P.A., and that on April 9, 1989, he entered into a contingency fee agreement with Lygia C. Tschirgi (Tschirgi) for representation in a personal injury action. Hollander authorized and adopted the contingency fee agreement signed by Tschirgi. The attorney initially handling Tschirgi's case, Gladys Coia, left Hollander and Associates and the case was reassigned to another attorney in the firm, Scott Jontiff.
Hollander directed Jontiff to terminate the firm's representation of Tschirgi because he thought that the representation would not be successful or profitable. On February 12, 1990, Jontiff mailed Tschirgi a letter requesting that she execute a Notice of Termination discharging Hollander and Associates from representing her. Tschirgi returned the Notice of Termination form unsigned to Hollander and Associates indicating that she did not want to discharge the firm. In October 1990, Hollander made a motion to withdraw from representation which was granted by the court. Upon withdrawal, Hollander and Associates placed a lien on Tschirgi's court file for payment of fees and costs. The lien for services indicated that the court would determine the amount owed by Tschirgi. Before withdrawing, Hollander informed Tschirgi that his law firm had incurred $6,000 in attorney services. Tschirgi consulted with several other attorneys about representation; however, all declined to represent her.
Furthermore, the referee found that the termination-of-service clause in the fee agreement required Tschirgi to pay Hollander and Associates for all services rendered until the termination. In addition to the hourly fee for services, the termination clause entitled the firm to receive a pro rata share of any recovery obtained by new counsel. The referee also found that the withdrawal clause of the contingency fee agreement contained a similar provision. The withdrawal clause allowed Hollander's firm to receive prompt payment for all services and a percentage of any recovery made by new counsel. The referee concluded that the contingency fee agreement provided for the collection of an excessive fee and penalized Tschirgi for exercising her right to terminate Hollander's services.
The referee found Hollander guilty of violating the following rules: Rules Regulating The Florida Bar 4-1.5(A) (); 4-8.4(a) (); and 4-8.4(c) (). The referee also found three aggravating factors: 1) past disciplinary record for violating Rule Regulating The Florida Bar 4-1.5(A) (); 2) selfish or dishonest motive; and 3) vulnerability of victims. The referee found in mitigation the fact that Hollander had not sought to enforce the terms of the retainer agreement other than filing a charging lien with the court. In addition, the referee also found that Hollander expressed remorse for his actions.
The referee recommended that this Court give Hollander a public reprimand and that he be placed on six months' probation. The referee recommended that the terms of Hollander's probation require that he immediately stop the use and enforcement of the termination-of-services and withdrawal clauses. The referee also recommended that Hollander's existing contingency fee cases which contain a termination-of-services and a withdrawal clause be modified in order to remove the excessive fee or penalty for the client's discharge of the firm. Finally, the referee recommended that Hollander notify each of the firm's clients of the modification, and that Hollander file a written certification with the Clerk of the Supreme Court of Florida that he has completed the terms of the probation.
Hollander first argues that the referee committed reversible error by allowing The Florida Bar to proffer evidence of Hollander's prior disciplinary conduct, involving a violation of rule 4-1.5(A). Hollander argues that the proffer by The Florida Bar caused him prejudice by presenting bad character evidence. The record reflects that the referee rejected the proffered evidence and did not consider it; thus, we find that Hollander's contention is without merit.
Hollander also challenges the referee's decision to qualify The Florida Bar's expert witness concerning personal injury cases and contingency fee agreements. The record shows that the expert witness had extensive experience with personal injury and contingency fee agreements. Thus, we find that Hollander failed to show that the referee abused his discretion in qualifying the expert witness.
Hollander challenges the referee's finding that the termination and withdrawal clauses of the contingency fee agreement violated rule 4-1.5(A). Hollander argues that the contingency fee agreement read as a whole is intended to conform to The Florida Bar Rules of Professional Conduct and that the termination-of-services clause was not intended to allow the...
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