The Florida Bar v. Schiller, 71830
| Decision Date | 02 February 1989 |
| Docket Number | No. 71830,71830 |
| Citation | 14 Fla. L. Weekly 59,537 So.2d 992 |
| Parties | 14 Fla. L. Weekly 59 THE FLORIDA BAR, Complainant, v. John J. SCHILLER, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Thomas E. DeBerg, Asst. Staff Counsel, Tampa, for complainant.
John J. Schiller, Fort Myers, in pro. per.
This disciplinary proceeding is before us on complaint of the Florida Bar and the referee's report. The referee recommends suspending Schiller for two years, followed by a one-year probation, for misappropriating client trust funds. The Florida Bar petitioned for review, arguing that Schiller should be disbarred. We have jurisdiction under article V, section 15 of the Florida Constitution. We accept the referee's findings of fact, but suspend Schiller for three years.
The record discloses the following facts. After being notified that a grievance had been filed against him, Schiller disclosed a deficit of approximately $10,000 in his trust account. Prior to meeting with the bar, Schiller deposited $9,000 of his own funds towards that deficit. An audit of his trust account between June 1982 and October 1987 disclosed deficits gradually increasing to over $29,000 on September 21, 1987. Following a determination of the exact deficit, Schiller borrowed money and covered the entire shortage. Schiller testified that he knowingly wrote checks on the trust account without authorization and that he used his clients' money for his own purposes.
The referee recommends finding Schiller guilty of commingling client funds, failing to promptly deliver client trust funds, utilizing funds for purposes other than those for which entrusted, and failing to keep sufficient trust records, inter alia. He recommends a two-year suspension, one-year probation, and successful completion of the Florida Bar ethics exam. As stated earlier, the Florida Bar seeks disbarment.
The misuse of client funds is one of the most serious offenses a lawyer can commit. The Florida Bar v. Newman, 513 So.2d 656 (Fla.1987); The Florida Bar v. Breed, 378 So.2d 783 (Fla.1979). Upon a finding of misuse or misappropriation, there is a presumption that disbarment is the appropriate punishment. This presumption, however, can be rebutted by various acts of mitigation, such as cooperation and restitution. See The Florida Bar v. Pincket, 398 So.2d 802 (Fla.1981).
In this case the record demonstrates that disbarment is not the appropriate punishment. By the time of the final hearing, Schiller had replaced in his trust account all the money he misappropriated. There is no indication that the misappropriations directly damaged any clients. Moreover, Schiller has undertaken to pay trust funds to those medical providers who are entitled to receive them. The referee noted that Schiller seemed to be genuinely remorseful and appeared to be a good candidate for rehabilitation. Because of the above-stated factors we conclude that disbarment is not the appropriate sanction in this case. On the other hand, we find that the recommended punishment is insufficient to impress upon Schiller, the rest of the profession, and the public that Schiller's misconduct was egregious.
Therefore, we hereby suspend Schiller for a period of three years and thereafter until he shall prove his rehabilitation, pay the cost of this proceeding, and pass the ethics portion of the Florida Bar examination. In order to protect his clients and close out his practice in an orderly fashion Schiller's suspension will be effective thirty days from the date this opinion is filed. Schiller will accept no new business after this opinion's filing date. Judgment is entered against Schiller for costs in the amount of $5,490.06, for which sum let execution issue.
It is so ordered.
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