The Florida Bar v. Glick, 87463

• Decision Date: 08 May 1997
• Docket Number: No. 87463,87463
• Parties: 22 Fla. L. Weekly S261 The FLORIDA BAR, Complainant, v. Brian Jay GLICK, Respondent.
• Court: Florida Supreme Court

Page 550

693 So.2d 550

22 Fla. L. Weekly S261

The FLORIDA BAR, Complainant, v. Brian Jay GLICK, Respondent.

No. 87463.

Supreme Court of Florida.

May 8, 1997.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David M. Barnovitz and Kevin P. Tynan, Bar Counsel, Fort Lauderdale, for Complainant.

John A. Weiss of Weiss & Etkin, Tallahassee, and Gregg W. McClosky of Mattlin & McClosky, Boca Raton, for Respondent.

PER CURIAM.

We have for review the referee's report regarding alleged ethical breaches by Brian Jay Glick. We have jurisdiction. Art. V, § 15, Fla. Const.

The Florida Bar (the Bar) filed a five-count complaint against Brian Jay Glick (Glick), charging him with violating various Rules Regulating The Florida Bar. Count I charged Glick with violating rules 4-1.1 (a lawyer shall provide competent representation to a client with such competent representation requiring legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation) and 4-1.3 (a lawyer shall act with reasonable promptness and diligence in representing a client). Count II charged Glick with violating rules 4-1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) and 4-1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation). Count III charged Glick with violating rules 4-1.2 (a lawyer shall abide by a client's decision whether to make or accept an offer of settlement), 4-1.4(a) and 4-1.4(b). Count IV was withdrawn by the Bar. Count V alleged that Glick violated rules 3-4.3 (a lawyer shall not engage in conduct contrary to honesty), 4-1.8(b) (a lawyer shall not, in connection with a disciplinary matter, fail to disclose a fact necessary to correct a misapprehension known by the lawyer to have arisen in the matter), and 4-8.4(c) (a lawyer shall not engage in conduct constituting dishonesty, fraud, deceit, or misrepresentation).

In a pretrial stipulation, Glick admitted to the violations alleged in Counts I and II, and the Bar withdrew Count IV. After a hearing, the referee found Glick guilty on counts III and V, recommended a suspension of ten days, and taxed costs to Glick. Glick now challenges the referee's findings of fact and recommendations of guilt as to Counts III and V, as well as the referee's recommended discipline.

The recommendations as to guilt are based on the referee's following findings of fact. On February 27, 1989, Ruth Schiller and her husband, David Schiller, retained Glick to represent them in an action to recover damages for personal injuries they sustained in a vehicular accident which occurred on or about February 11, 1989. Glick filed a complaint on behalf of the Schillers, but he did not pursue the claim with reasonable diligence or provide the thoroughness and preparation reasonably necessary for the representation. As a result of Glick's lack of reasonable diligence and his lack of thoroughness and preparation, the Schillers' complaint was dismissed on February 25, 1993. This dismissal occurred after the statute of limitations had run, and thus the suit could not be refiled. Prior to dismissal, Glick had received from the defendants' attorney an offer or indication of settlement range for an amount between $1500 and $2000 each for Mr. and Mrs. Schiller. Glick failed to convey this settlement offer or indication of settlement range to the Schillers.

Glick did not inform the Schillers of the dismissal or respond to Mrs. Schiller's case status inquiries until after August 21, 1995, when Mrs. Schiller filed a complaint with the Bar. Glick subsequently settled with the Schillers, and a release was executed in Glick's favor. Glick requested that the settlement agreement include a non-disclosure clause; Mrs. Schiller, acting on behalf of her husband and herself, agreed.

Subsequently, Glick sent a letter to the Bar dated November 6, 1995, in response to the Bar's inquiry concerning Mrs. Schiller's complaint. In that letter, Glick represented that Mrs. Schiller "has asked that the settlement remain confidential," although he knew at the time that it was he, and not Mrs. Schiller, who had made that request.

After reviewing the record, we adopt the referee's findings of fact and approve the recommendations of guilt as to Counts III and V. A referee's findings of fact concerning guilt carry a presumption of correctness and should be upheld unless clearly erroneous or without support in the record. Florida Bar v. Benchimol, 681 So.2d 663, 665 (Fla.1996); Florida Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986). If the referee's findings are supported by competent, substantial evidence, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. Benchimol, 681 So.2d at 665; Florida Bar v MacMillan, 600 So.2d 457, 459 (Fla.1992). The party contending that the referee's findings of fact and recommendations as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the recommendations. Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996); Florida Bar v. Miele, 605 So.2d 866, 868 (Fla.1992).

The referee's findings of fact and recommendation of guilt as to Count III are supported by competent, substantial evidence. Glick's own admission in his November 6, 1995 response letter to the Bar established that a settlement offer or indication of settlement range was made. The amounts discussed were not vague or unrealistic; Glick stated that the "Defendants in this case had offered Mr. and Mrs. Schiller in the range of $1,500 to $2,000 each to resolve this matter prior to...